Satyanarayan Laxminarayan Hegde And... vs Millikarjun Bhavanappa Tirumale

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 25 September 1959

Coram: K.C. Das Gupta, M. Hidayatullah

The case titled Satyanarayan Laxminarayan Hegde and others versus Millikarjun Bhavanappa Tirumale was decided on 25 September 1959 by the Supreme Court of India. The judgment was authored by Justice K.C. Das Gupta, who sat on the bench together with Justice M. Hidayatullah. The factual background began with an application filed on 22 August 1949 in the Revenue Court of the Mamlatdar of Sirsi, situated in District Kanara. The respondent, Millikarjun Bhavanappa Tirumale, sought a decree for the delivery of possession of a property that the appellant, Satyanarayan Laxminarayan Hegde, occupied as a tenant on that date. The possession claim was premised on a “Mulegeni” deed that had been executed by the respondent’s predecessor in interest in favour of the appellant’s predecessor in interest. One of the essential conditions of the lease stipulated that if rent remained unpaid for three consecutive years, the Mulegeni right would become void and the lessee would be required to surrender possession of the property to the lessor. In his application before the Mamlatdar, the respondent relied on this specific condition and also alleged that he had terminated the tenancy. The tenancy fell within the scope of the Bombay Tenancy and Agricultural Lands Act, 1948 (referred to as the Bombay Tenancy Act), which was not contested, and which contains a provision for termination of tenancy in Section 14. The defendant‑appellant acknowledged that rent for three successive years had indeed been in arrears, but he contested the respondent’s entitlement to possession on the ground that the respondent had failed to give notice indicating his right to obtain possession under the rent agreement and had not terminated the tenancy by proper notice. The Mamlatdar rejected the appellant’s contention and issued an order for possession in favour of the respondent, subject to a condition that the tenancy of any sub‑tenants would not be disturbed. On appeal, the Collector of Kanara held that the Mamlatdar possessed no authority under the Bombay Tenancy Act and consequently lacked jurisdiction to make such an order. The Collector further ruled that the respondent was not entitled to possession because the tenancy had not been lawfully terminated by notice. Accordingly, the Collector allowed the appeal and set aside the Mamlatdar’s order. The landlord, acting as the respondent‑plaintiff, then appealed this decision to the Bombay Revenue Tribunal. Before the Tribunal, the issue of the Mamlatdar’s jurisdiction was not raised. The Tribunal observed that the Bombay Tenancy Act applied to lands held under Mulegeni tenure, but concluded that the landlord had failed to terminate the tenancy by giving notice before instituting an ejectment proceeding, and therefore rejected the application for possession. Subsequently, the landlord filed an application before the High Court of Bombay, invoking the court’s power of superintendence under Article 227 of the Constitution of India. The landlord prayed that the High Court call for the records and proceedings in the case, examine them, and, on that basis, set aside the orders of the Tribunal and the Collector and restore the Mamlatdar’s order by issuing a writ of certiorari or any other appropriate writ.

In the petition before the High Court, the applicant asked that the order passed by the Tribunal and the Collector be set aside and that the order of the Mamlatdar be restored, either by issuing a writ of certiorari or by any other appropriate writ. The High Court held that the Tribunal had committed an error that was apparent on the face of the record when it ruled that a possession order could not be granted unless a notice terminating the tenancy had been served before proceedings were instituted. Acting on that view, the Court issued a writ of certiorari, annulled the Tribunal’s order and reinstated the order of the Mamlatdar.

The nature and reach of writs of certiorari have been examined in detail by this Court in the decision Hari Vishnu Kamath v. Syed Ahmed Ishaque. Referring to earlier judgments, this Court stated at page 1121 that the following propositions are established: (1) Certiorari will be issued to correct jurisdictional errors, that is, when an inferior court or tribunal acts without authority, exceeds its authority, or fails to exercise the authority it possesses; (2) Certiorari will also be issued when the inferior court or tribunal acts illegally within its evident jurisdiction, such as when it decides a matter without affording the parties an opportunity to be heard or when it breaches the principles of natural justice; (3) The Court that issues a writ of certiorari does so in a supervisory capacity, not an appellate one, and consequently it does not review factual findings of the inferior body even if those findings are wrong. This approach rests on the principle that a court having jurisdiction over a subject matter can decide both correctly and incorrectly, and that the legislature’s decision not to provide a right of appeal would be frustrated if a superior court were to rehear the case on the evidence and substitute its own findings. The Court emphasized that these propositions are well‑settled and not in dispute.

Beyond the three settled propositions, the Court also addressed a fourth proposition that has generated some controversy: whether certiorari may be issued when the decision of the inferior court or tribunal is erroneous in law. After examining various reported decisions from England and India, the Court summarized the position at page 1123 as follows: “It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere…”

The Court observed that it was difficult to draw a precise line between an error that was merely an error and an error that was apparent on the face of the record. Counsel on both sides could not point to any bright‑line rule that would separate the two categories. The counsel for the first respondent, Mr Pathak, relied on remarks made by Chief Justice Chagla in Batuk K. Vyas v. Surat Municipality, arguing that an error could not be said to be apparent on the face of the record unless it was self‑evident and did not require any further examination or argument to establish it. He suggested that this test might work satisfactorily in most cases, but he also cautioned that there could be situations in which the test would fail, because judicial opinions differ and what one judge regards as self‑evident may not be regarded as such by another. The Court concurred that the concept of an error apparent on the face of the record could not be defined with exactness or exhaustiveness, since it contains an inherent element of indefiniteness, and therefore each case required judicial determination based on its own facts. The principal issue before the Court on appeal, after the grant of special leave, was whether any error apparent on the face of the record existed that would permit the superior Court to call for the records and set aside the order by a writ of certiorari, or whether any error, if present, was only a mere error not apparent on the face of the record, which could be remedied only by an appeal, provided a right of appeal existed. The defendant‑appellant contended that the landlord, who was the plaintiff‑respondent, possessed no right to a possession order because he had not terminated the tenancy by giving notice to the defendant‑appellant. The Bombay Revenue Tribunal accepted that contention as correct. Consequently, the question for the Court was whether the judgment of the Bombay Revenue Tribunal contained an error apparent on the face of the record that the High Court could nullify through a writ of certiorari. To answer that, the Court first needed to examine the language of section 14 of the Bombay Tenancy Act, which prescribed that a notice was required before a tenancy could be terminated. The provision read: “14. Termination of tenancy: (1) 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— (a) (i) 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 made under the Bombay Land Revenue Code, 1879, for that year, the rent of such land for that year, or (ii) if an application for the determination of reasonable rent is pending before the Mamlatdar or the Collector under section…”. The Court therefore set out to determine whether the absence of a notice, as claimed by the defendant‑appellant, fell within the statutory requirements and thus constituted an error apparent on the face of the record.

The provision listed as clause (a) sets out three specific circumstances in which a tenant may be deemed to have failed in his obligations. First, the tenant must have neglected to pay the rent for the relevant year within fifteen days after the deadline fixed for the payment of the last instalment of land revenue, as prescribed by the rules under the Bombay Land Revenue Code, 1879. Second, where an application for the determination of reasonable rent is pending before either the Mamlatdar or the Collector, the tenant must have failed to deposit, within fifteen days of the same deadline, an amount equal to the rent that would have been payable for that year had no application been filed. Third, if the reasonable rent finally determined under section 12 exceeds the amount that the tenant deposited, the tenant must also have failed to pay the remaining balance within two months from the date of the decision issued by the Mamlatdar or the Collector, as the case may be. In addition to these financial defaults, the statute lists further grounds for termination: (b) any act by the tenant that is destructive or causes permanent injury to the land; (c) the subdivision of the land; (d) sub‑letting the land or the failure to cultivate it personally; and (e) using the land for any purpose other than agriculture. Paragraph 2 of the same section addresses tenancies that extend for ten years or more, providing that such tenancies shall automatically come to an end at the expiration of the prescribed period unless the landlord, by accepting rent or by any other act or conduct, effectively permits the tenant to remain in possession in accordance with the meaning of section 116 of the Transfer of Property Act, 1882. Paragraph 3 subsequently clarifies that, notwithstanding the provisions of sub‑section (1), the tenancy of a minor or a person who suffers from a physical or mental disability cannot be terminated on the sole ground that the land has been sub‑let on the tenant’s behalf.

Paragraph 10 observes that the language of the section does not expressly require the landlord to serve a notice in order to effect termination of the tenancy. Likewise, section 29, sub‑section 2, which states that no landlord may obtain possession of any land or dwelling house held by a tenant except through an order of the Mamlatdar, does not impose any prerequisite of notice prior to filing an application for possession. Paragraph 11 records the argument advanced on behalf of the appellant, who contends that the very wording of section 14 implies that termination cannot be effective without an overt act by the landlord that demonstrates an intention to end the tenancy. The appellant argues that the choice of the phrase “shall not be terminated” marks a clear distinction from the language employed in section 111 of the Transfer of Property Act, where the lease is said to “determine” in various ways. It is observed that the Bombay Legislature, fully aware of the meaning of “determines” in section 111, deliberately avoided using that term or the phrase “shall not terminate,” opting instead for “shall not be terminated.” The submission suggests that this deliberate choice of words indicates a legislative intention that termination under sub‑section (1) requires a positive, communicative act by the landlord, unlike the automatic termination envisioned in sub‑section (2).

The Court observed that the phrasing employed in section 14 was intentional and not accidental. It noted that sub‑section 2 of section 14 deals with termination of a tenancy by the mere passage of time in certain situations, and the legislature expressly states that the tenancy shall terminate at the expiration of the prescribed period. The argument advanced was that the sole purpose of using different language in the two sub‑sections is to indicate the legislature’s intention that, in the circumstances covered by sub‑section 2, termination occurs automatically without any affirmative act by the landlord, whereas in the situations governed by sub‑section 1 the landlord must actually exercise a power to terminate before the termination becomes effective. The submission further urged that, when the landlord chooses to exercise this power, he must convey his intention to the other contracting party, namely the tenant. The learned judges of the High Court were then cited for pointing out that section 24 of the Bombay Tenancy Act requires a written notice before an ejectment proceeding may be instituted when termination is based on the ground specified in section 14(1)(b), that is, when a tenant has committed an act that is destructive or permanently injurious to the land. They also observed that the Act contains no similar notice requirement for any of the other grounds enumerated in section 14(1). The opposing argument contended that the notice provision in section 24 is intended solely to give the tenant an opportunity to remedy the injury caused and does not relate to the fact of termination itself. It was further suggested that, had the legislature wished, it could have also provided a comparable remedial opportunity for tenants who were in arrears of rent, perhaps by mandating a notice from the landlord indicating non‑payment. Questions were then raised as to whether the legislature’s failure to create such an opportunity for a defaulting tenant can be taken as evidence that termination without notice is effective, and whether the requirement in section 24 that the landlord serve a written notice specifying the destructive act weakens the inference drawn from the words “shall not be terminated,” namely that some communication of the landlord’s exercise of the termination option must be made to the tenant before termination becomes effective. Finally, on behalf of the plaintiff‑respondent, it was argued that the landlord’s intention to terminate is sufficiently manifested by the very act of filing an application for possession, and that it would be reasonable to regard such filing as providing the tenant with adequate notice of termination.

It was argued that the mere fact that an application for possession had been filed could itself constitute sufficient notice of the landlord’s intention to terminate the tenancy. To assess that argument, the Court found it necessary to examine the language employed by the Legislature in section 25, which provides relief against termination of a tenancy for non‑payment of rent. The provision states: “Where any tenancy of any land held by 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 cost of the proceedings, 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 of 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 provision adds a qualification that nothing in this section shall apply to any tenant whose tenancy is terminated for non‑payment of rent if the tenant has failed for three years to pay rent within the period specified in section 14. The Court noted that, in the present case, the tenancy had indeed been terminated because the tenant failed to pay rent for three consecutive years as required by section 14. Consequently, the operative part of section 25 would not apply, a point the parties conceded. Nevertheless, the Court observed that the inapplicability of that operative part did not preclude an examination of the language of section 25 to determine whether the Legislature intended the termination to occur before, and independently of, the filing of ejectment proceedings. The argument advanced by the respondents focused on the presence of the word “and” in the phrase “where any tenancy of any land held by any tenant is terminated for non‑payment of rent and the landlord files any proceedings to eject the tenant ….” They contended that this conjunction indicated that the Legislature contemplated a sequence whereby termination for non‑payment of rent must first be effected, after which the landlord would be at liberty to commence ejectment proceedings. If that interpretation were correct, there would be no basis for assuming a different legislative intent in cases where the non‑payment persisted for three years. The Court then turned to consider the effect of section 3 of the Bombay Tenancy Act, which reads: “The provision of Chapter V of the Transfer of Property Act, 1882, shall, 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.” Chapter V of the Transfer of Property Act comprises twelve sections, numbered 105 to 116. Within that chapter, section 111 deals with the determination of a lease, and clause (g) of that section, as it existed at the time the Bombay Tenancy Act and section 3 were enacted, provided the relevant rules concerning termination by forfeiture.

The Court turned to the wording of clause (g) of section 111 of the Transfer of Property Act, which provides that a lease may be terminated by forfeiture in the following situations: (i) when the lessee breaches an express condition that authorises the lessor to re‑enter; (ii) when the lessee renounces his status as lessee by establishing a title in a third person or by claiming title for himself; or (iii) when the lessee is adjudicated insolvent and the lease permits the lessor to re‑enter upon that event. In each of these cases the clause further requires that the lessor or his transferee give written notice to the lessee of the intention to determine the lease.

The lease that is the subject of the present dispute expressly provides that the lessor may re‑enter if rent is not paid for three consecutive years. Accordingly, under the present wording of clause (g), and also under the wording that existed in 1948 when the Bombay Tenancy Act was enacted, a determination of the lease would be valid only if the lessor had served written notice of his intention to terminate. The Court therefore concluded that, assuming clause (g) as it stood at the time of the Bombay Tenancy Act’s enactment and as it stands now is applicable to the tenancy, the lease has not been validly determined under section 3 of the Bombay Tenancy Act because the statutory requirement of written notice has not been satisfied.

The Court noted, however, that the stipulation requiring written notice was introduced into clause (g) by the amendment of the Transfer of Property Act through Act 20 of 1929. Section 57 of that amending Act replaced the earlier phrase “does some act showing” with the words “gives notice in writing to the lessee of”. Section 63 of the same amending Act further declared that nothing in section 57 would affect the terms or incidents of any transfer of property made or effected before 1 April 1930. Counsel raised the argument that, because the lease in question was created well before 1930, the amendment should not apply and the earlier version of clause (g) should govern the tenancy.

The Court rejected that argument. It pointed out that section 3 of the Bombay Tenancy Act makes no distinction between tenancies or leases created before or after 1 April 1930. The provision simply states that, to the extent they are not inconsistent with the Bombay Tenancy Act, the provisions of Chapter V of the Transfer of Property Act, 1882, shall apply to all tenancies and leases of lands covered by the Act. Consequently, the amendment introduced by Act 20 of 1929, and the requirement of written notice contained in the current wording of clause (g), applies to the lease in this case regardless of the date of its execution.

The Court noted that the provisions of the Bombay Tenancy Act were intended to apply to the situation before it. It considered the suggestion made by counsel that the correct method of addressing the question was to read a proviso into section 111(g) and into the other sections referred to in section 63 of the Amending Act. The proposed proviso would state that “the terms or incidents of any transfer of property made effective before April 1, 1929, will not be affected hereby.” The Court asked whether this approach correctly answered the problem. It further inquired whether, when the Bombay Legislature spoke of the provisions of Chapter V of the Transfer of Property Act, 1882, the legislators had the Act as it actually stood on the statute book in mind, rather than an imagined version of the Act that incorporated such a proviso. The Court also reminded that the Bombay Tenancy Act had been enacted with the purpose of benefitting peasants and improving cultivation of land, and it asked whether this purpose should be kept in view while interpreting the provisions.

In paragraph 18 the Court explained that, when courts interpret legislation that is meant to be beneficial, they invariably prefer an interpretation that furthers that beneficial purpose. It asked whether this principle provided an additional reason to conclude that, by adopting section 3, the legislature intended that the provisions of Chapter V of the Transfer of Property Act, 1882, should apply to all tenancies covered by the Bombay Tenancy Act, regardless of whether those tenancies were created before April 1, 1930, or thereafter. The Court then turned to the contention raised by the respondent that, even if the claim for possession was based on forfeiture under the lease terms, the landlord was required to prove that he had served a written notice to the lessee indicating his intention to determine the lease. The Bombay Revenue Tribunal had held that the plaintiff‑respondent must fail in his application for possession because he had not terminated the tenancy by notice before instituting ejectment proceedings. The Court asked whether that conclusion was erroneous and, if so, whether any such error was apparent on the face of the record. It observed that if it were clear that any error was not evident on the face of the record, it was unnecessary to decide whether the High Court’s conclusion on the notice issue was correct. The Court further stated that an error that required a lengthy process of reasoning, where two differing opinions could be plausibly advanced, could not be described as an error apparent on the face of the record. It concluded that the rival arguments presented in the case made the alleged error far from self‑evident and that, should an error exist, it would have to be established through extensive and complicated argument. Accordingly, the Court expressed the view that such an error could not be remedied by a writ of certiorari under the rules governing the superior court’s power to issue that writ, and it held that the High Court had been mistaken in thinking that

In reviewing the matter, the Court focused on whether the alleged error in the Bombay Revenue Tribunal’s judgment could be corrected by a writ of certiorari. The Court examined the claim that the judgment of the Bombay Revenue Tribunal contained a mistake because it held that a possession order could not be issued unless a prior notice had been served. The Court concluded that this alleged mistake was evident on the face of the record and therefore could be corrected by a writ of certiorari. For the reasons previously discussed, the judgment and the order passed by the High Court could not be upheld. Consequently, the appeal was allowed, and the order of the High Court that had issued a writ of certiorari was set aside. The order of the Bombay Revenue Tribunal was vacated, and the order originally made by the Mamlatdar was reinstated. At the same time, the Court also restored the order of the Bombay Revenue Tribunal, thereby giving it full legal effect. The appellant was awarded costs incurred in this proceeding as well as costs incurred before the High Court. Accordingly, the final disposition of the case was that the appeal was allowed, confirming the reversal of the lower court orders. This decision fully resolved the issues that had been raised in the earlier proceedings, leaving no further matters for the courts to consider.