Skip to content


Tippayya Kuppayya Vaidya Vs. Rama Narayana Hegde and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. (B) No. 3 of 1956
Judge
Reported inAIR1961Kant131; AIR1961Mys131; ILR1960KAR1270
ActsTransfer of Property Act, 1882 - Sections 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117 and 214; Tenancy Law; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 3, 5, 5(2), 5(3), 14, 14(1), 24, 25, 25(1), 25(2), 29, 29(1), 29(2), 29(3), 34 and 81; Bombay Land Revenue Code, 1879 - Sections 56; Common Law Procedure Act, 1852 - Sections 212; Rent Restriction Act
AppellantTippayya Kuppayya Vaidya
RespondentRama Narayana Hegde and ors.
Appellant AdvocateT.P. Naik, ;C.B. Motayya, ;S.C. Javali, ;V.S. Malimath, ;Raikar and ;G.B. Kulkarni, Advs.
Respondent AdvocateK.I. Bhatta, ;H.B. Datar, ;K.S. Savanur, ;G.S. Ullal and ;S.V. Mahajan, Advs.
Excerpt:
- income tax act,1961[c.a.no.43/1961] -- section 132 (4): [deepak verma & k.l. manjunath, jj] search & seizure examination of any person who is in possession or control of any books of accounts, documents, by an authorised officer, in the course of search or seizure statement made by any such person during examination - whether can be used as evidence, in any proceedings under the income tax act - ordinary letter dispatched by one of the partners of the assessee whether can be considered as a statement recorded as per section 132 (4) of the act held, the said letter cannot be treated as a statement said to have been made under sub-section (4) of section 132 of the income tax act since the said letter is not recorded on oath by the authorised officer during the course of search.....s.r. das gupta, c.j. 1. this petition raises a very important question relating to the bombay tenancy act, the question broadly put is whether relief against forfeiture can be given under the said act in cases where there are more than two defaults.2. a large number of cases which are on the list would depend for their decision on a decision of this question. for the sake of convenience we permitted all the learned advocates who appear for the landlords in those cases as also all the learned advocates who appear for the tenants in those cases to argue this question before us. this question, therefore, was argued before us from all possible points of view and we had the fullest assistance from the learned advocates who appeared and argued their respective contentions before us.3. the facts.....
Judgment:

S.R. Das Gupta, C.J.

1. This petition raises a very important question relating to the Bombay Tenancy Act, The question broadly put is whether relief against forfeiture can be given under the said Act in cases where there are more than two defaults.

2. A large number of cases which are on the list would depend for their decision on a decision of this question. For the sake of convenience we permitted all the learned advocates who appear for the landlords in those cases as also all the learned advocates who appear for the tenants in those cases to argue this question before us. This question, therefore, was argued before us from all possible points of view and we had the fullest assistance from the learned advocates who appeared and argued their respective contentions before us.

3. The facts which led up to the filing of the present petition may be shortly stated as follows: The petitioner was the tenant of the suit land. Respondents 2 and 3 are the landlords and they filed an application before the Mamlatdar for possession of the suit land on the ground of Four defaults. The petitioner took, amongst others the defence that as there was dispute between the landlords he did not know to whom the payment had to be made and, therefore, no payment of rent in question could be made.

On 16-5-53 the Mamlatdar ordered possession. The petitioner preferred an appeal against the said order to the Prant Officer. On 28-11-53 the Prant Officer allowed the appeal, He held that there was a dispute between the landlords and the defaults were bona fide. The Prant Officer gave relief to the petitioner against forfeiture. Against that order a revision petition was filed before the Bombay Revenue Appellate Tribunal.

On 11-4-56 the said Tribunal set aside the order of the Prant Officer and upheld the order of the Mamlatdar. Against that decision the present petition has been filed and, as I mentioned before, the main question, if not the only question, which was argued before us in this petition was whether or not relief against forfeiture can be given as there are more than two defaults in this case.

4. The learned advocate appearing for the petitioner contended before us that relief against forfeiture can be given even if there are more than two defaults on the part of the tenant. He rested his contention on several grounds. In the first place, he urged that such relief can be given under Section 114 of the Transfer of Property Act. Then it was contended that even if Section 114 of the Transfer Of Property Act is in terms not applicable to the present case, even then relief should be given on the grounds of equity, justice and good conscience which underlie the provisions of Section 114 of the Transfer of Property Act.

It was further contended that such a relief can be given under Section 29(3) of the Bombay Tenancy Act itself., These are the main contentions which have been urged before us on behalf of the tenants. There are other supplemental contentions to which I shall refer hereafter. I shall take up these contentions of the learned advocate for the petitioner one by one.

5. I shall first deal with the question as to whether or not relief can be given where there are more than two defaults, under Section 114 of the Transfer of Property Act. Section 114 of the Transfer of Property Act provides as follows;

'Relief against forfeiture for non-payment of rent. -- Where a lease of immovable property has determined by a forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.'

The principal question which has to be determined in order to decide whether or not the matter comes within Section 114 of the Transfer of Property Act is, what is the meaning of the expression 'forfeiture' as used in Section 114 of the said Act. In my opinion, the meaning of the expression 'forfeiture' as used in Section 114 of the Transfer of Property Act is to be found in Section 111(g) of the said Act.

Section 111(g) of the said Act provides that a lease of immovable property determines by forfeiture; that is to say, in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or the lessee is adjudicated an insolvent and lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease'.

It seems to me that when it is said in Section 114 that 'where a lease of immovable property has determined by forfeiture,' it is meant that it has been determined in the manner as' indicated in Section 111(g) of the Transfer of Property Act. In the present case it is not disputed that there is no forfeiture as contemplated in Section 111(g) of the Transfer of Property Act. That being so, no relief under Section 114 of the Transfer of Property Act can be given in the present case.

6. This view as to the true scope of Section 114 of the Transfer of Property Act finds support from a decision of the Bombay High Court reported in Bhagwant v. Ramchandra, : AIR1953Bom129 . In dealing with this question Mr. Justice Gajendragadkar, who delivered the judgment in that case, held as follows:

'There is one more point which may incidentally be considered and that is, whether the tenant is entitled to the protection of Section 114 of the Transfer of Property Act. This ` gives jurisdiction to the Court to grant relief to the tenant against forfeiture for non-payment of rent and there can be no doubt that this power can be exercised even by the appellate Court. The difficulty in exercising this power in the present case, however, arises from the fact that it is not shown that forfeiture has been incurred as required by Section 111(g) of tbe Transfer of Property Act. The word 'forfeiture' used in Section 114 has a technical meaning which must be ascertained by reference to Section 111(g) of the said Act. Forfeiture in this technical sense is incurred in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter, and even in such a case the lessor has to give notice in writing to the lessee of his intention to determine the lease.'

The present case is fully covered by the above observations of their Lordships of the Bombay High Court. In this case also it is not shown that forfeiture has been incurred as required by Section 111(g) Of the Transfer of Property Act. I am, therefore, clearly of the opinion that Section 114 of the Transfer of Property Act cannot in any way help the petitioner in the present case.

7. There is, however, one question which was raised before us during the hearing of this matter relating to the applicability of Section 114 of the Transfer of Property Act. It was contended that none of the provisions of Ch. V of the Transfer of Property Act including Section 114 of the said Act, except Section 117, were applicable to the case of a tenancy covered by the Bombay Tenancy and Agricultural Lands Act.

It was contended that Section 117 clearly provides that none of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may, by notification published in the Official Gazette, declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if my, for the time being in force. This provision it was urged clearly makes the whole of Ch. V in which Section 114 is enacted inapplicable to a case of agricultural lease and tbe said Chapter would be applicable only if there is a notification issued by the Government as contemplated therein.

Section 3 of the Bombay Tenancy Act provides that the provisions of Ch. V of the Transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies. But it was contended that the only effect of the said section is that Section 117 is incorporated in the Tenancy Act and no other provisions of Ch. V are, by virtue of the said section, incorporated in the said Act.

It was further contended that the manner in which the provisions of Ch. V can be incorporated, other than Section 117, is by issuing a notification as contemplated in Section 117 and as admittedly that has not been done the other provisions of Ch. V of the Transfer of Property Act, including Section 114 of the said Act, are inapplicable to a case coming under the Bombay Tenancy and Agricultural Lands Act. I find some difficulty in accepting this contention.

8. In my opinion, the effect of Section 3 of the Bombay Tenancy and Agricultural Lands Act is to incorporate all the provisions of Ch. V of the Transfer of Property Act into the Bombay Tenancy and Agricultural Lands Act. Otherwise, it seems to me, there was no purpose whatsoever In enacting Section 3 of the said Act. In any event, the case of the petitioner is not in any way advanced even if it is held that Section 114 of the Transfer of Property Act does not apply to the case of a tenancy created under the Bombay Tenancy and Agricultural Lands Act.

If Section 114 is inapplicable to cases coming under the Bombay Tenancy and Agricultural Lands Act, then there can be no question that no relief can be given under the said section. It was of course urged before us that relief should be given on equitable principles which underlie the provisions of Section 114 of the Transfer of Property Act. I shall deal with that contention hereafter.

9. It is clear that Section 114, if it is inapplicable-to a case coming under the Bombay Tenancy and Agricultural Lands Act because of the provisions of Section 117 of the Transfer of Property Act, then relief under Section 114 of the said Act cannot be given. This contention of the petitioner, in my opinion, therefore, should fail.

10. I come to the next question urged before us that relief should be given on the grounds of equity, justice and good conscience which underlie the provisions of Section 114 of the Transfer of Property Act, even though Section 114 may not be applicable to such a case. In support o this contention several decisions of the Madras High Court were cited before us. It was urged on tbe strength of the decisions reported in Ramakrishna Martoba Rao v. Fernandez : AIR1927Mad239 and in Janab Vellathi v. K. Kadervel Thayammal AIR 1958 Mad 232, that in a case where Section 114 of the Transfer of Property Act does not apply, the principles underlying the said section would be applicable and relief could be given on the basis of those principles.

It should be noted that these two decisions deal with cases to which the Transfer of Property Act did not apply; they being, cases of agricultural leases. These decisions are, in ray opinion, no authority for the proposition that in a case where the Transfer of Property Act applies but relief cannot be given under Section 114 of the said Act, such relief can still be given on the equitable principles which underlie the said section.

It should also be noted that in both these decisions there was a lease and in the lease there was an express provision to the effect that the tenancy will be forfeited on non-payment of rent. Therefore, the cases with which these two decisions dealt are cases where if Section 114 of the Transfer of Property Act had been applicable, relief under the said section could have been given. As Section 114 did not apply to agricultural leases relief was given on the equitable principles which the said section enunciates.

11. The effect of one of those two decisions, i.e., : AIR1927Mad239 , came to he considered by the Nagpur High Court in a case reported in K. G. Pandit v. Narsinghdas, AIR 1951 Nag 207. Mr. Justice Deo who decided the said case, in the course of his judgment, referred to the said decision in : AIR1927Mad239 and observed as follows:

'The next contention is that relief should be given against forfeiture for non-payment of rent. It was further contended that even if Section 114, T. P. Act, in terms does not apply, relief should be granted against forfeiture as was held in Kishanlal v. Raimath, ILR (1944) Nag 877: (AIR 1944 Nag 229) and in : AIR1927Mad239 . These are cases of agricultural leases to which the provisions of Ch. V regarding leases of immovable property in the T. P. Act do not apply by virtue of Section 117 of that Act. It has been held in these cases that if the conditions requisite for the application of Section 114 are found to exist, relief should be granted. In those cases there was an express covenant for forfeiture for non-payment of rent. Unless there is an express condition to pay rent at a specified time, and a provision for re-entry for such non-payment annexed, non-payment of rent will not entail a forfeiture.'

I respectfully agree with the view taken by his Lordship in that case. The two Madras decisions on which reliance was placed are cases in which there was an express covenant for forfeiture for non-payment of rent and the conditions requisite for the application of Section 114 of the Transfer of Property Act were there. That being so, even though Section 114 of the Transfer of Property Act in terms did not apply relief was given against forfeiture on the equitable principles which the said section embodied.

12. At this stage, I should mention that the Supreme Court in the case of Namdeo v. Narmada-bai, : [1953]4SCR1009 , had to consider the scope of the equitable principle as incorporated in the Transfer of Property Act. Mahajan, J., (as he then was), who delivered the judgment in the said case, did not accept that there was any such broad principle namely that Sections 105 to 116 of the Transfer of Property Act are founded on principles of reason and equity.

His Lordship, however, held that to the extent that those sections of the Act give statutory recognition to principles of justice, equity and good conscience they are applicable also to cases not governed by the Act. In my opinion, the effect of these observations of his Lordship is that in cases which do not come within the provisions of Section 114 of the Transfer of Property Act relief against forfeiture cannot be given.

In my opinion, the equitable principles are embodied in the Transfer of Property Act. That was also the view taken in a decision of the Madras High Court reported in Krishna Shetti v. Gilbert Pinto, AIR 1919 Mad 12. That being so, in my opinion, relief against forfeiture cannot be given in a case which, even if the Transfer of Property Act were applicable to it, would not have come under Section 114 of the said Act, on the ground of equity, justice and good conscience,

13. This leads me to another question which was argued before us at great length. It was contended on behalf of the tenants that there can be statutory forfeiture and if there is a statutory forfeiture, then relief against forfeiture can also be given. In support of the contention that there can be statutory forfeiture the learned advocates for the tenants relied on a decision of the Bombay High Court reported in Amolak Banechand v. Dhondi, ILR 30 Bom 466.

That case dealt with Section 56 of the Bombay Land Revenue Code which provided that arrears of land revenue due on account of land by any landholder shall be a paramount charge on the holding and every part thereof, failure in payment of which shall make the occupancy or alienated holding together with all rights of the Occupant or holder over all trees, crops, buildings and things attached to the land or permanently fastened to anything attached to the land, liable to forfeiture, whereupon the Collector may levy all sums in arrears by sale of the occupancy or alienated holding freed from all tenures, incumbrances and rights created by the occupant or holder or any of his predecessors-in-title or in any wise subsisting as against such occupant or holder or may otherwise dispose of such occupancy or alienated holding under rules or orders made in this behalf under Section 214.

This section, it was held, created forfeiture. On the authority of this decision it was contended before us that Section 5 of the Tenancy Act read with Section 14 thereof created a statutory forfeiture and that being so relief against forfeiture can be given irrespective of the provisions of Section 114 of the Transfer of Property Act.

14. Section 5 of the Tenancy Act provides as follows:

'5(1) No tenancy of any land shall be for a period of less than ten years:Provided that at the end of the said period and thereafter at the end of each period of ten years in succession, the tenancy shall, Subject to the provisions of Sub-sections (2) and (3), be deemed to be renewed for a further period of ten years on the same terms and conditions notwithstanding any agreement to the contrary.'

Sub-section (2) of the said section is not material for the present purpose, Sub-section (3) reads as follows:

'(3) Notwithstanding anything contained in Sub-section (1):(a) every tenancy shall, Subject to the provisions of Sections 24 and 25, be liable to be terminated at any time on any of the grounds mentioned in Section 14;'

In Section 14 of the said Act it is provided that notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated unless such tenant, amongst others, has failed to pay in any year, within fifteen days from the day fixed for the payment of the last instalment of land revenue in accordance with the rules under the Bombay Laud Revenue Code, 1879, for that year, the re rent of such land for that year.

It was contended before us that there was an element of forfeiture in the said provisions of the Tenancy Act. In the first place, it was urged that a tenancy was created by Section 5 for a period of not less than ten years. In other words, a tenant was given the right to enjoy his tenancy for a period of not less than ton years renewable for a further period of ten years. This right, according to the learned advocates appearing for the tenants, would be forfeited and the tenancy would be liable to be terminated at any time on any of the grounds mentioned in Section 14.

One of the said grounds is failure to pay rent in accordance with the provisions of the said section. This, it was urged, and in my opinion there is some force in this contention, that the right which was created in the earlier part of Section 5 of the Tenancy Act in favour of the tenant would be forfeited if any of the contingencies mentioned in Section 14 of the said Act would happen.

It was further contended that a forfeiture, as was observed in the said case reported in ILR 30 Bom 466, implies loss of a legal right for breach of obligation. In this case a legal right which was created by Section 5, according to the learned advocates appearing for the tenant, would be forfeited if there is a breach of any of the obligations as mentioned in Section 14 of the Tenancy Act.

This according to them was, therefore, a case of statutory forfeiture. It was then contended before us that if there is a statutory forfeiture, then relief against forfeiture should be given irrespective of the question as to whether or not Section 114 of the Transfer of Property Act applies to the case; and such relief should be given on equitable principles.

It was further contended before us that Section 25 of the Tenancy Act does not give full relief in this respect, since it only compels the Mamlatdar to give relief where there are two defaults and the said section has no application to cases where there are more than two defaults. Such cases it was urged, would be governed by the general principles of equity, justice and good conscience and relief against forfeiture should be given.

15. As against these contentions urged on behalf of the tenants, the learned advocates appearing for the landlords contended before us that this is not a case of statutory' forfeiture at all What has been done, according to them, is that a statutory concession has been given to the tenants and that concession is subject to certain conditions as mentioned in Section 5(3) and Section 14 of the Bombay Tenancy Act. It was further contended that the entire Act has to be read in order to determine what is the right which is conferred on the tenant by it.

The right which is conferred by the Tenancy Act is the right to continue for a period of ten years subject to the condition that if there is failure in payment of rent and in observing the other conditions mentioned in Section 14 of the Tenancy Act, then the tenancy would be liable to be terminated, It is not, it was contended by the learned advocates appearing for the landlords, a case of statutory forfeiture. Forfeiture, according to them, implies some kind of penalty and there is no penalty involved in this case.

16. The next line of argument which was advanced before us by the learned advocate for the landlords on this matter is that whore there is a statutory forfeiture relief against forfeiture can be given only by statute. In Support of that contention reference was made to Brij Raj Krishna v. M/s. Section K. Shaw and Bros., : [1951]2SCR145 , AIR 1919 Mad 12 and Dellenty v. Fellow, (1951) 2 KB 858. In this case, it was further contended by some of the learned advocates appearing for the landlords, that the statute has already provided for relief against forfeiture and that is to be found in Section 25 of the said Act. Relief against forfeiture, if any, can be given only within the four corners of the said section,

17. In my opinion, it is not necessary to corny to a final decision on the question as to whether or not this is a case of statutory forfeitrue. I shall proceed on the assumption that it is a case of statutory forfeiture and consider whether or not relief against forfeiture can be given on the general principles of equity, justice and good conscience. I am in agreement with the view pressed before us by the learned advocates appearing for the landlords that where there is at statutory forfeiture relief against forfeiture can be given only by the Statute.

I am also of the Opinion that in this case the statute by enacting Section 25 of the Tenancy Act has made specific provisions for giving relief against forfeiture. In my Opinion, Section 25 is exhaustive and whatever relief, the tenant would be entitled to, against forfeiture has to be found in the said section. The Supreme Court decision on which reliance was placed by the learned advocates for the landlords, : [1951]2SCR145 , does not deal with the question with which we are concerned in the present case.

The nearer case on this point is the English decision reported in (1951) 2 KB 858. In that case the County Court Judge made an order for possession of premises within the Rent Restriction Acts on the ground of non-payment of rent, which was a year in arrear. The arrears were paid into Court before judgment, but the tenant had a bad record for non-payment of rent, having had to be summoned repeatedly.

On his appeal from the order for possession, the tenant contended that it was not reasonable to make the order since all arrears of rent had been paid before judgment, that as under Section 212 of the Common Law Procedure Act, 1852, the payment of arrears of rent into Court had the effect of relieving the tenant from forfeiture, he should be granted relief on paying the arrears into Court. In dealing with this question, their Lordships held as follows:

'An argument was raised by Mr, Caulfield based on Section 212 of the Common Law Procedure Act. 1852. He pointed out that if any ordinary contractual tenancy had been here in question the tenant would have been entitled as of right to relief from forfeiture upon paying into Court or tendering to the landlord the full amount of the arrears of rent and costs. Having done that he would have been restored in his position as tenant, the forfeiture brought about by the proceedings being remedied by force of the statute. Mr. Caulfield submitted that the principle of the Common Law Procedure Act should he applied, as it were by analogy, to the case of a statutory tenant. In that I am unable to follow him, for the effect of the Rent Restriction Acts is to suspend or restrict the landlords right to possession of premises after the contractual relationship of landlord and tenant has ceased. There is therefore no ground for holding that the landlord is to be denied possession of premises comprised in a statutory tenancy, in any of the cases in which those Acts allow an order for possession to be made, and in which the Court thinks it reasonable to make such an order, because in similar circumstances a tenant under a contractual tenancy would have had a statutory right to relief from forfeiture.'

This decision, in my opinion, helps the contention of the landlord in the present case. Here also a statutory tenancy was created by virtue of the provisions of Section 5 of the Tenancy Act. By creation of the statutory tenancy the landlord's right to possession after the contractual relationship of landlord and tenant ceased, was restricted to a considerable extent. That being so, there is no ground for holding that the landlord has to be denied possession of the premises comprised in a statutory tenancy in any of the cases in which the Act allows an order for possession to be made unless of course there is a specific provision restricting the landlord's right even in that respect

Whether or not such a provision is to be found in Section 25 of the Tenancy Act is a question which I shall deal with a little later. In my opinion, no relief against forfeiture can be given in the case of a statutory forfeiture on the general grounds of equity, justice and good conscience. I am, therefore, of the opinion that this part of the contention advanced before us by the learned advocates appearing for the tenants cannot succeed.

18. This leads me to the next question arising on Section 25 of the Bombay Tenancy and Agricultural Lands Act. With regard to the said section, the first question to be decided is whether it gives any relief against forfeiture or whether the relief that is given is a relief against termination. One of the contentions urged before us by some of the learned advocates appearing for the landlords was that Section 25 gives no relief against forfeiture.

The said section only gives relief against termination of tenancy. It was further contended by the said learned advocates that the Act provides for no relief against forfeiture and, therefore, no relief against forfeiture can be given in any case. In support of that contention the learned advocates relied on the provisions of Sub-section (1) of Section 25 itself which reads as follows:

'(1) Where any tenancy of any land held fy any tenant is terminated for non-payment Of rent and the landlord files any proceeding to eject the tenant, the Mamlatdar shall call upon the tenant to tender to the landlord the rent in arrears together with the costs of the proceeding, within fifteen days from the date of order, and if the tenant complies with such order, the Mamlatdar shall in lieu of making an order for ejectment pass an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated,'

The learned advocates in support of their contention laid emphasis on the words 'pass an order directing that the tenancy had not been terminated' and also on the marginal note of the said section which reads: 'Relief against termination of tenancy for non-payment of rent'. The said learned advocates, therefore, contended that the relief given under the said section is not a relief against forfeiture but a relief against termination of tenancy. I find it difficult to accept this contention.

19. In my opinion, Section 25 in effect gives relief against forfeiture even though the expression used is relief against termination. Under Section 14 of the Tenancy Act the landlord becomes entitled to terminate the tenancy, on the tenant failing to pay rent in accordance with the said section by giving notice to quit. Thereupon the tenancy stands determined by forfeiture assuming that is the effect of the said section.

In that case any relief given to the tenant permitting him to pay up the arrears would be relief against forfeiture. This view of mine finds support from a Full Bench decision of the Bombay High Court reported in Ganpati Appa v. Maruti Bala, 62 Bom LR 802. Chief Justice Chainani, who delivered the judgment in that Full Bench case, after referring to the provisions of Section 25 of the Bombay Tenancy Act, observed:

'This section provided for relief against forfeiture of a tenancy for non-payment of rent Under Sub-section (2) this relief could not be claimed by a tenant, if he had not paid rent for three years within the prescribed period.'

In my opinion, also, the relief which is granted under Section 25(1) of the Bombay Tenancy Act la a relief against forfeiture and it would not be right to hold that it is merely a relief against termination but not against forfeiture.

At this stage I should mention that one of the arguments advanced before us on behalf of the learned advocates appearing for the tenants also was that Section 25(1) of the Tenancy Act gives no relief against forfeiture but gives relief against termination of the tenancy and therefore the stage of forfeiture had not been reached till then and it would be reached only after the relief under Section 25(1) is obtained by the tenant. I equally find it difficult to accept this contention.

20. We put many times to Mr. Raikar, learned advocate, who propounded this proposition to tell us as to when would the stage at which relief against forfeiture can be given be reached. Mr. Raikar contended before us that the stage would be reached when the Mamlatdar decides in his own mind that possession should be given. I find it impossible to accept this contention, viz., that the tenant would he entitled to relief against forfeiture only when the Mamlatdar comes to the conclusion in his own mind that the tenant should be evicted and possession should be given to the landlord.

A more reasonable view to take would he to hold that, when the tenancy is terminated by the landlord and he is entitled to do so under Section 14 of the Tenancy Act and he applies to the Mamlatdar for possession, the question of giving relief against forfeiture would arise and Section 25 provides for such relief. I, therefore, hold that S, 25(1) gives relief against forfeiture.

21. The next question, winch arises for our consideration, is whether or not relief which is given under Section 25(1) is exhaustive. I should at this stage once again mention that forfeiture having been created by the statute whatever relief has been given by the statute against such forfeiture would be all the relief which would be available to the party concerned, In my opinion, Section 25 of the Bombay Tenancy and Agricultural Lands Act mentions all 'he circumstances under which relief against forfeiture can be obtained.

If a case does not come within the said subsection, then no relief against forfeiture would be available to the tenant. If should be mentioned that the Tenancy Act is a complete code by itself. The tenant gets all his protections under the said Act and he must look to the Act itself for such protection. In my opinion, the relief against forfeiture as given in Section 25 of the said Act is the only relief which the tenant would be entitled to get'.

22. At this stage I should mention that one of the contentions urged before us by Mr. Savanur appearing for the landlords was that virtually Section 25(1) of the Bombay Tenancy Act is the same as Section 114 of the Transfer of Property Act with this distinction, viz., that whereas under Section 111 of the Transfer of Property Act the Court may grant relief against forfeiture, under Section 25(1) of the Bombay Tenancy Act the Mamlatdar is bound to give relief against forfeiture to the tenant.

Another distinction is that such relief in the case coming under Section 114 of the Transfer of Property Act can be given even if there are more defaults than two, whereas under Section 25(1) of the Tenancy Act such relief can be given and shall be given only when there are two defaults. Mr. Savanur contended before us, and I am inclined to accept that contention, that Sub-section (2) of section 25 makes it clear that the Mamtatdar shall not give relief to the tenant if there are more than two defaults.

23. Sub-section (2) of Section .25 of the Bombay Tenancy and Agricultural Lands Act provides:

'(2) Nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in Section 14.'

The effect of that section, according to Mr. Sava-nur, is that the Mamlatdar shall not call upon the tenant to tender to the landlord the rent in arrears-if there is failure to pay rent for three years within the period specified in Section 14. As I said before,. I am inclined to accept this contention of Mr. Savanur.

Section 25(1) has given relief against forfeiture to the tenant but to the extent as mentioned in the said section. On the one hand under section 25(1) of the Bombay Tenancy and Agricultural Lands Act the Mamlatdar is bound to give relief to the tenant if there are only two defaults, on the other he shall not give such relief if there are more than two defaults. To this extent section 25(1) is different from Section 114 of the T. P. Act.

In my opinion, Section 25(1) is exhaustive and what-ever relief is available to the tenant must be found in the said section. It should be noted that section 25 is the only section which deals with the question of relief against termination of tenancy which as I have already indicated, virtually amounts to relief against forfeiture. That being so, I am of the opinion that under Section 25(1) the relief in question Cannot be given.

24. I now come to the last part of the arguments which were advanced by the learned advocates appearing for the tenants, and that rests on Section 29(3) of the Bombay Tenancy and Agricultural Lands Act. Before I deal with the contention of the learned advocates On this point it would; be necessary to set out the entire provisions of Section 29 of the said Act. The said section reads as follows:

'29(1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for such possession to the-Mamlatdar. The application shall be made in such form as may be prescribed and within a period of two years from the date on which the right to obtain possession of the land or dwelling house is deemed to have accrued to the tenant, agricultural labourer or artisan, as the case may be.

(2) No landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application-in the prescribed form and within a period of two years from the date or, which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him.

(3) On receipt of application under Sub-section (1) or (2) the Mamalatdar shall after holding an inquiry, pass such order thereon as he deems fit.

(4) Any person taking possession of any land or dwelling house except in accordance with the provisions of Sub-section (1) or (2), as the case may be, shall be liable to forfeiture of crops, if any, grown in the land in addition to payment of costs as may be directed by the Mamlatdar or by the Collector and also to the penalty prescribed in Section 81.'

The contention of the learned advocates, appearing for the tenants before us was that Sub-section (1) of Section 29 of the Bombay Tenancy Act gives a discretion, to the Mamlatdar to pass such order is he considers fit. In other wards, the Mamlatdar can even if a case for possession has been made out pass an order for possession or refuse to pass an order for possession.

The Mamlatdar has discretion to pass any order as he thinks fit. It was further contended before us that under this section the Mamlatdar can even give relief to the tenant against forfeiture although there are more than two defaults, and give time to the tenant to pay up the arrears. Section 25(1), according to the said learned advocates, makes it only obligatory upon the Mamlatdar to give relief to the tenant when there are only two defaults.

In other words, if there are two defaults the Mamlatdar is bound to give relief under Section 25(1), but Section 29(3), according to them, leavers it open to the Mamlatdar to exercise his discretion in cases where there are more than two defaults and to give relief to the tenant in such cases. In other words, if there are more than two defaults the Mamlatdar is not hound to give relief against forfeiture to the tenant but has a discretion in the matter and may by virtue of Sub-section (3) of Section 29 give relief against such forfeiture in such, a case.

25. This view advanced before us is undoubtedly supported by several decisions of the Bombay High Court. The main decision on which reliance was placed is reported in Raghuvira Vyasaraya v. Govind Mogre, ILR 1955 Born 1069. It was a decision of Chief Justice Chagla and Mr. Justice Dixit. Chief Justice Chagla who delivered the judgment in that case, in dealing with that question, observed as follows:--

'In the first place, Section 25 does not confer any substantive right upon the landlord to obtain possession. Sub-section (1) imposes an obligation Upon the Mamlatdar to give relief to the tenant in certain cases where the tenant has not paid rent and that obligation is removed by Sub-section (2) in cases where the tenant is in default for three years. When we turn to Section 29 under which the application was made by the Landlord to the Mamlatdar for possession, Sub-section (3) confers a discretion upon the Mamlatdar to pass any proper order on the application of the landlord and. in effect, what the Tribunal has done is that it has exercised its discretion and has taken the view that inasmuch as the landlord has received rent in full and there was no default on the part of the tenant on the date when the application was made, this was not a case where the Landlord should be given possession.'

This view taken by their Lordships of the Bombay High Court in this case has been followed in Sub-sequent decisions of the said High Court. It appears that the said decision of their Lordships of the Bombay High Court mainly proceeds on the view (a) that Section 25 does not confer any substantive right upon the landlord to obtain possession and (b) that Sub-section (3) of Section- 29 confers a discretion upon the Mamlatdar to pass any order on the application of the landlord. I shall have, therefore, to examine these two propositions separately in order to determine whether or not I can agree with the view taken by their Lordships in the said Bombay decision.

26. The first proposition to be considered is whether or not Section 25 confers any substantive right upon the landlord to obtain possession, One of the main arguments which have been advanced before us by the learned Advocates appearing for the tenant also was that the landlord, has no right to terminate the tenancy. It was contended by Mr. Javali, one of the learned Advocates who appeared for the tenants, that under the Tenancy Act the landlord is not entitled to possession except by an order of the Mamlatdar.

To this extent Section 108(q) of the Transfer of Property Act which provides that on the termination of the lease the lessee is bound to put the lessor into possession of the property is it was argued, inconsistent with the provisions of the Tenancy Act and is, therefore, not applicable to this case. The effect of Section 14, according to him, is that the landlord is only entitled to intimate his decision to terminate, but he has no power to terminate and the termination can only be ordered by the Mamlatdar; and that the Mamlatdar is bound to order under Sub-section (1) of Section 25 that there has been no termination if there are only two defaults and under Sub-Section (3) of Section 29 may make an order that there has been termination if there are more than two defaults. The final decision as to whether or not there will he termination rests not with the landlord but with the Mamlatdar.

27. This contention of Mr. Javali was followed up by Mr. Raikar also appearing on behalf of the tenants. He further contended that termination is by operation of law and not by virtue of anything done by the landlord. All that the landlord is entitled to do is to intimate his decision to terminate. The learned Advocates found support for their contention in the decision of the Bombay High Court reported in ILR 1955 Bom 1069 to which I have already referred.

With all respect for their Lordships of the Bombay High Court who decided the said case I am unable to agree with the proposition that there is no substantive right conferred upon the landlord to obtain possession. I am also unable to bold that the landlord cannot terminate the tenancy but that the termination can be done only by the Mamlatdar. The view that there is no substantive right conferred upon the landlord to obtain possession runs contrary to the provisions of Section 29 itself.

Sub-section (2) of Section 29 provides that no landlord shall obtain possession of any land or dwelling house held by a tenant except under the orders of the Mamlatdar. The said sub-section further provides that for obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him.

Thus under this sub-section a right to obtain possession of the land has to accrue to the landlord before lie makes an application for obtaining possession. Otherwise it would be meaningless to say that he must make an application for such possession within a period of two years from the date on which the right to obtain possession of the land is deemed to have accrued to him. The question is when docs the right to apply accrue to him.

28. In my opinion, such right would accrue as soon as there has been termination of the tenancy. It may even he earlier as indicated by the words 'deemed to have accrued to him'. But such right to obtain possession would certainly accrue on termination of the tcnarcy. I am unable to accept the contention of the learned Advocates ap pearing for the tenant that such termination in cases governed by the Tenancy Act Can only be effected by the Mamlatdar by virtue of the provisions of section 25 or Section 29 of the Bombay Tenancy Act.

In my opinion, Section 5 read with Section 25 of the Tenancy Act makes it clear that the termination has to he effected by the landlord. Sub-section (3) of Section 5 provides that every tenancy shall be liable to be terminated at any time on any of the grounds mentioned in section 14. Section 14 provides that notwithstanding any agreement usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not he terminated unless such tenant has committed any of the defaults mentioned in the said section and the landlord gives three months' notice in writing of his decision to terminate the tenancy and the grounds of such termination.

These two sections, in my opinion, make ft quite clear that it is for the landlord to decide whether or not he will terminate the tenancy and if ho decides to terminate the tenancy he shall have to give three months' notice as contemplated in the said section. The termination has, in my opinion, to he effected by the landlord himself and not by the Mamlatdar as urged before us. Such termination would take place on the tenant committing any of the defaults mentioned in Section 14 and on the landlord giving notice to terminate the tenancy.

The landlord, in my opinion, under the general law would have the right to obtain possession as soon as the tenancy is terminated. The principle underlying this proposition is quite simple and it is this It is the landlord who is the owner of the and in question. The tenancy is an encumbrance on his ownership; as soon as the encumbrance is removed or as soon as the landlord gets rid of that encumbrance, the landlord once again becomes the full owner of the said land. That being so, he would become entitled to the possession of the suit land.

In other words the relationship of the landlord and tenant would come to an end with the termination of the tenancy and the relationship that would exist after such termination would be merely the relationship of an owner and occupier - may be, a trespasser of the said land, In such a case the owner would have every right to obtain possession of the suit land. The right to obtain possession which the landlord would have on termination of the tenancy follows from the general law and, in my opinion, it would be difficult to uphold the contention that the landlord would have no right to obtain such possession.

As I have already mentioned, that the landlord would be entitled to possession is also clear from the provisions of Section 29 itself which enjoins that the landlord will have to make an application for possession within two years from the date when his right to obtain possession has accrued. This view finds support from a recent Full Bench decision of the Bombay High Court (62 Bom LR 802) to which I have already referred for another purpose.

29. In the case reported in 62 Bom LR 802 (FB) their Lordships held in clear terms that 'A landlord acquires a right to obtain possession of his land as soon as the tenancy conies to an end' (See p. 805). I am, therefore, of the opinion that the view in [LR 1955 Bom 1069on the basis of which their Lordships decided the said case that the landlord has no right to obtain possession cannot be accepted as correct.

30. I shall have now to deal with the other proposition on which [he said decision reported in ILR 1955 Bom 1069 rests. That proposition is that Sub-section (3) of Section 29 confers a discretion, upon the Mamlatdar to pass any order on the application of the landlord, and that includes an order for giving relief against forfeiture in cases where there are more than two defaults.

In the first place, it should be noted that this sub-section in which this discretion is said to hava been given to the Mamlatdar appears as part of Section 29 of the Bombay Tenancy and Agricultural Lands Act and not as part of Section 25 of the said Act. Section 29, as the marginal note would show, lays down the procedure to be followed by the tenant and also by the landlord in order to obtain possession.

Sub-section (1) deals with the case of a tenant and it provides that a tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for such possession to the Mamlatdar and the period within which he has to make that application is a period of two years. Sub-section (2) deals with the case of a landlord and provides that the landlord shall have to go to the Mamlatdar in order to obtain possession of any land or dwelling house held by a tenant and the period would be two years.

Thereafter Sub-section (3) provides that on receipt of an application under Sub-section (1) or (2) the Mamlatdar shall, after holding an inquiry, pass such order thereon as he deems fit. I shall consider the clfect of the expression used in the said sub-section, viz. 'pass such order thereon as he deems fit' a little later. For the present I want to point out that this sub-section is part of Section 29 which lays down the procedure to be followed by the landlord and by the tenant in order to obtain possession of any land or dwelling house.

It does not form part of Section 25 which is the only section in the Act dealing with the question of relief against forfeiture. The two Sub-sections (1) and (2) of Section 25 seem to be. complete by themselves. I do not see any reason why the question of relief against forfeiture should be determined by reference to Sub-section (3) of Section 29 which is part of the procedural section, i.e. Section 29 itself.

31. In the next place it should be rioted that if the view taken by the Bombay High Court on this point, viz. that the Mamlatdar has got absolute discretion in the matter of passing an order tor possession, that is to say, the Mamlatdar may or may not pass an order for possession even where a case for possession has been made out would lead to strange results. For instance, even in a case where a tenant makes an application under Sub-section (1) of Section 29 and he makes out a case for possession the Mamlatdar would be free, on this view of the matter, to order possession to be delivered to him or not as he deems fit, as there is nothing to fetter the discretion of the Mamlatdar on this point.

It should be noted that Sub-section (3) refers equally to Sub-sections (1) and (2). Sub-section (1), as I have already mentioned, deals with the case of the tenants who are entitled to possession. Would it be reasonable to hold that a tenant, even though he is entitled to possession under any of the provisions of this Act and makes an application to the Mamlatdar under Sub-section (1) of Section 29 and makes out a case for possession, will not be given such possession if the Mamlatdar chooses not to do so? In my opinion, that would be a strange and absurd result which the Legislature could not have contemplated.

Again, if an application is made, by virtue of Section 34 of the Bombay Tenancy Act, by a landlord who has terminated a tenancy on the ground that he bona fide requires the land for any of the purposes mentioned in that section, then, on this view of Sub-section (3) of Section 29, the Mamlatdar in his discretion may or may not deliver possession of the land to the landlord even though the landlord may have established his case for possession under Section 34 of the said Act. The result of such a view would be that the Mamlatdar would be free to nullify any of the provisions of Section 34 or of Section 29 of the Bombay Tenancy Act. I am unable to accept such a view.

32. The next question which arises is, what is the true meaning of the expression used in subsection (3) of Section 29, viz. 'pass such order thereon as be deems fit.' It should be noted that the full expression is 'the Mamlatdar shall, after holding an inquiry, pass such order thereon as he deems fit'. The word 'shall' has certainly an importance of its own. It implies that the Mamlatdar will be bound to make an order although it is stated in the latter part of the said sub-section 'such order as he deems fit'. The question is, what is the meaning of the expression 'as he deems fit'.

In my opinion the expression 'as he deems fit' has to be read in relation to the merit of the case. In other words, if the Mamlatdar comes to the conclusion that it is a case where possession should be given, he is bound under the said sub-section to give such possession. If, on the other hand, he comes to the conclusion that it is not a case, having regard to the provisions of the Tenancy Act, where possession can be given, he shall not deliver possession. In other words, the words 'as he deems fit' implies that it would be for the Mamlatdar to decide on die merits of die case as to whether or not a case for possession under the Tenancy Act has been made out.

33. This view finds support from the observations of the House of Lords in Ex parte Barnes, 1896 AC 146 which are to the following effect;-

'But (hen there came what seems to me to be an absolutely independent and separate set of provisions, and that was that if the official receiver thought fit he was to make a further report. The expression 'if he thinks fit' must of course mean if he arrives at a judicial conclusion in his own mind that such facts are before him, and in proof, that it becomes his duty. It is left to him to do it if he thinks fit; it is not made necessary for him to do it in every case, but only in such cases as in his judgment demand such a course to be pursued. 'If he thinks fit' he is to 'make a further report or further reports, stating the manner in which the company was formed, and whether in his opinion any fraud has been committed by any person in the 'promotion or formation of the company, or by any director, or other officer of the company, in relation to the company since the formation thereof, and any other matters which in his opinion it is desirable to bring to the notice of the Court.'

In my opinion, these observations are helpful in ascertaining the true meaning of the expression 'pass such order thereon as he deems fit' as appearing in Sub-section (3) of Section 29. It means that if the Mamlatdar arrives at a judicial Conclusion in his own mind that facts before him are such that the landlord is entitled to obtain possession, and such facts have been proved, then it becomes his duty to pass such order and that such a duty is cast upon him is indicated by the expression 'shall' as appearing in Sub-section (3) of Section 29 of the said Act. This being, in my opinion, the true effect oi the said Sub-section (3) of Section 29 of the Bombay Tenancy Act, I am unable to hold that the provisions of the said section can be availed of for the purpose of obtaining relief by the tenant in cases where he has committed more than two defaults,

34. In the result I hold that the tenant is not entitled to relief against forfeiture if there are more than two defaults. That was the view which I sitting with Mr. Justice Hombe Gowda took in an earlier decision of this Court reported in Narayan Ramakrishna v. Narayan Mahahaleshwar, 1959 Mys LJ 739. It must, however, be said that all the points which were agitated before us in this petition were not raised before us in that case. In any event, I come to the same conclusion, on a fuller consideration of the matter, at which I had arrived in the said earlier Case.

35. Before concluding I should mention that in a later decision of the Bombay High Court Special Civil Application No. 545 of 1956 (Bom) Mr. Justice Gajendragadkar and Mr. Justice Gokhale also came to the same conclusion. Their Lordships held as follows:-

'It would be noticed that the right to terminate the tenancy and claim possession of the land from his tenant accrues to the landlord even on a single default in the payment of rent, as prescribed by Section 14(1). Then Section 25 lays down certain principles which have to be observed by the Courts administering the provisions of the Tenancy Act in the matter of forfeiture against tenancy. But section 25 (2) excludes the application of these principles and disqualifies a tenant from claiming relief against termination of his tenancy it it is shown that he has failed to pay rent for any three years. In other words, if in a application tor ejecting the tenant on the ground of non-payment of rent the landlord is able to show that the tenant had failed to pay rent on due dates for three years in the past, then no plea by the tenant for equitable relief against termination of the tenancy can be entertained. On the other hand, if the claim for possession is made against a tenant who is not shown to have committed a default for three years or more, it would be open to him even when the tenancy has been terminated by a valid notice and a claim for possession has been made before the Mamlatdar, to claim that relief should be granted to him against such a termination. Section 29 then deals with the procedure of taking possession of an agricultural land governed by the Act.'

36. In the result, therefore, I hold on a full consideration, of the matter that no relief against forfeiture can be given to a tenant under the Tenancy Act where he has committed more than two defaults. Before concluding this judgment I ought to mention that one of the arguments which was advanced before us was that the object of the Act would be defeated if such a view is taken. It was pointed out to us that the preamble of the said Act makes it clear that it was intended to benefit the tenants. Section 25, it was contended, should be construed in accordance with the said object of the Act.

37. In my opinion, the sections of the Act have to be construed on the language of the said sections. If on the language of the said sections the interpretation becomes clear, then that interpretation will be given effect to whatever may be the object as stated in the preamble of the Act. It is only when there is some doubt as to the possible: interpretation of a particular section and two interpretations are possible that the preamble of the Act may be looked into for the purpose of determining what should be the proper construction of the section in question.

That was also the view taken by the Bombay High Court in the case to which I have already referred, viz. : AIR1953Bom129 . It is stated therein that it is well settled that if the words used in a statute are clear and unambiguous and yield only one meaning, Courts cannot refuse to give that word that meaning on the argument that the said meaning is not consistent with the hypothetical intention of the Legislature.

If the words in question are ambiguous and are capable of two meanings it would clearly be the duty of the Courts to assign them such meaning as would give effect to the Act and as would be consistent with the object of the Legislature in passing the Act. In my opinion, the effect of the sections in question on the words is quite clear and unambiguous and it is not necessary to look to the preamble of the Act for the purpose of determining the true effect thereof.

38. The result, therefore, is that this petition fails and is dismissed. Each party will bear and pay its own costs of this petition.

Somnath Iyer, J.

39. I agree.

40. Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //