Raja Ram Mahadev Paranjype and Others v. Aba Maruti Mali and Others

Sarkar J. In these three cases there is no controversy that the tenancies have been terminated under s.14.

There is also no dispute that the tenants are not entitled to be relieved against that termination under sub-s. ( 1) of s. 25 because of the provisions of sub-sec. (;!)of that section, as in these eases the rent had not been paid for three years. They how-ever claim relief on the principle on which equity grants relief against forfeiture of tenancies. The authorities under the Act have granted them the relief by applying this equitable principle.

In our ovinion, the a.uthorities were clearly in error in thinking that they could grant relief in these cases on equitable principles. In equity relief may be granted to a tenant who has incurred a forfeiture under the terms of the tenancy, that is, his contract with the landlord. Here, that is not the position. The tenancies have been terminated in these cams under a statutory provision. In the circumstances that have happened, the landlords have in our opinion acquired a statutory right to the possession of the lands and, therefore, to eject the tenants, the reasons for which view we shall discuss in aome detail later. In such a case, no relief can be granted to the tenants on equitable principles.

Equity does not operate to annul a statute. This appears to us to be well established but we may refer to white and Tudors Leading Cases in Equity (9th ed.) p. 238, where it is stated,

"Although, in cases of contract between parties, equity will often relieve against penal-ties and forfeitures, where compensation can be granted, relief can never be given against the provisions of a statute."

746 SUPHEME COURT REPORTS (1962] SUPP.

Jg6J The order of the authorities taking a.way the land-Raja Ram II 11hai1• lords' statutory right to possession by application

Para11j'yp1 of rules of equity cannot be supported.

v.

Aha Mar111i M•li It was then 8aid that s. 29(3) gives ample

s.,.u, J, power to the to refuse to make an order authoritie~ for possession in the lamllord's favour if the tenant pays up the arrears and the justice of the case requires that the tenant should not be deprived of the land. That sub-section no doubt says that the Mamlatdar "shall ...... pass such order thereon as he deems fit". We are however v.holly unable to agree that this provision warrants the making of a.ny order that the authority concerned thinks in his individual opinion that the justice of the ca.so requires. We may here refer to R. v. Boteler(') where a statute which conferred power upon Justices to issue a distress warrant "if they shall think fit" was considered. In that case the Justices had refused to issue the distress war. rant. Cockburn C. J. observed, "They went upon the ground that the introduction of this extra-parochial place into the union was a thing unjust in itself; in other words, that the operation of the a.ct of parliament was unjust.. ................... I think, therefore it amounts virtually to saying,-'We know that we ought upon all other grounds to issue tho warrant, but we will ta.kc upon ourselves to say that the law is unjust, and we will not carry out the law'. That is not such an exercise of discretion as this Court will hold, in accordance with the authorities cited, to be one upon which it will act. The Justices must not omit. or decline to discharge a. duty according to law."

We think that that is what the authorities in the three cases before us have done. They have (l) (1864) 33 L. J. M. C. IOJ, J03.

refused to carry out the Act because they felt that 1961 it worked hardship. They have refused to give to Raja Ram \fahatlev the landlords the relief which the Act said they Paranjype should have. v. A.ha Maruti Mali Now, we feel no doubt that the Act provided Sar/car J. that a tenant should be granted relief only in >i case where he had not been in arrears with his rents for more than two years; in other words, . if he had been in arrears · for more than two years he was not to be given any relief against ejectment and the land-lord would be entitled to an order for possession.

First, we have to point out that the tenancy having been terminated in terms of the statute, the statute would necessarily create a right in the landlord to obtain possession of the demised premises. The tenancy having been terminated, the tenant is not entitled to remain in possession and the only person who would then be entitled to possession would be the landlord. The statute having provided for the termination of the tenancy would by necessary impli-cation create a right in the landlord to recover possession. The statute recognises this right by .providing bys. 29(2) for its enforcement by an appli-cation to the Mamlatdar. Indeed, s. 29(2) itself mentions this right expressly for it says that the application shall J:ie made within two years from the date on which '.'the right to obtain possession of the land" accrued to the landlord. We repeat that this is a statutory right because it is the statute which fixes the term of the tenancy and also provides for its termination ; it is not a contractual right which may be made subject to an equitable relief .

. We turn now to s. 25. Under sub-s. (1) of this section the tenant has a right to an order continu-ing the tenancy inspite of its termination by notice'

under s. 14 for non-payment of rent. Sub-section (2) however provides that sub-a. (1) shall not be avail-able to a tenant if he has failed for any three years to pay rent. The result is that the statute itself

748 SUPH.E'.IIE COURT REPORTS (1962] SUPP.

196!. provides for relief to a tenant where such a termina-Rlljfl. P..am M ahadeu tion has taken place. and prescribes the conditions

Paranjyp~ on which relief would bo available. It would follow

v.

Ata .Jiaruti .1.llali that the statute indicates that the tenant would not

Sarkar J. have the relief in any other circumstances. The

\ j result of this would inevitably be that the statute

confars a right on the landlord to recover possession wh"r" th" rig lit unrfar R. 2ii (I) fa not Jt'<1i>i!<ibl" tn the tenant, which right he can enforce in the manner indicated. That being so, s. 29 (3) cannot . be read as conferring on tho authorities a power

to annul this intendment of the Act. The words "in lieu of making an order for ejectment'' in sub·s. (I) of s. 25 support· the view that the Act intends that except inthe circumstances mentioned in it, the landlord is entitled as of right to get an order for possession from the Mamlatdar. · This view is further strengthened by the proviso to s. 25 (I) which says that ii the default in payment ·of rent had been caused by failure of crops Ol" similar reasons, the Mamlatdar may give the tenant a year's time to pay up and shall then provide in the order to be made by him that on the tenant's failure to pay within that year, "the tenancy shall be deem-ed to be terminated and the tenant shall be liable to be evicted". In such a case the 1\famlatdar could not by virtue of his supposed powers under s. 29(3) give further relief if the tenant failed to pay as directed, for the Act makes it incumbent on him to pass the conditional order of ejectment. There, of course, is possession for· the Act to have treated the cases under sub-s. (IJ and the proviso to it, differently. This again is another reason for say-ing that the Act provides that apart from the cir-cumstances mentioned in sub-s. (1) of s. 25 and the proviso to . it, the landlord has on a termination of the tenancy, a right to obtain an order for posses-sion in his favour. It would be anomalous if the general words in s. 29 (3) were to be construed as conferring power on the authorities to deprive him of the right which the other provisions in the Act - 1961 give him. Raja R11m Maha~- Parrinjyp• We think, therefore, that s. 29 (3) only confers v. power to make an order in terms of the statute, an Aha Maruti Mali order which would give effect to a right which the Sa,kar J. Act has elsewhere conferred. The words "as he deems fit" do not bestow a power to make any order on considerations rlehors the statute whioh the authorities consider best according to their notions of justice. Obviously, the provision has been framed in general terms because it covers a variety of cases, namely, applications by landlords and tenants in different circumstances, each of which circumstances may call for a different order under the Act.

One other argument under a similar head as dealt with previously, was that the tenants were entitled to relief against forfeiture under s. 114 of the Transfer of Property Act. Section 3 of the Act provides that "the provisions of Chapter 5 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 land to which this Act applies''. The present contention of the tenents is based on this section. It may be pointed out that ch. 5 of the Transfer of Property Act includes ss. 114 and 117. The last mentioned section provides that nothing in oh. 5 shall apply to leases for 'Lgriculture purposes except in so far as the State Government by notification declare them to be applioable. No such notification had been issued by the State Government. Therefore, the landlords contend, s. 114 does not apply to the pre-sent leases which are for agricultural purposes and the tenants are not entitled to relief under it. It does not seem to us necessary to decitle the ques-tion so raised. In our view, the provisions in s. 114 of the Transfer of Property Act are inconsis-tent with the provisions of the Bombay and cannot, 1961 therefore, under s. 3 of the latter Act govern the Rojo Rom M aluJdttJ tenancies to which it applies. We have earlier

ParaniJPt stated that the Bombay Act clearly intended that

v. relief against termination of tendency for non-pay-Aba M"'uii Mali

ment of rent would be given only in the cases men-Sarkar J. tioned in 25( I) and in no others. Under s. 114 of R.

the Trimsfer of Property Act relief may be given in other circumstances. Therefore, the provisions of this Rection are inconsistent with the provisions of the Bombay Act. For this reason we do not think that the tenants in the caRes before us are entitled to claim any relief under s. 114 of the Transfer of Property Act.

We think, therefore, that the tenants were not entit]Pd to th~ relief which the authorities below granted them. Before we pass on to the other appeal raising a different question, we have to refer to the case of Raghuvir Vyasaraya Acharya v. Gobind Mogre Bandekar(') were it had been held by Chagla C.J., thats. 2!1(3) justifies an order granting relief t-0 the tenant and refusing to make an order for po~s!'s~ion in favour of the landlord even where the ten,mt has not paid rent for more than two years. We think that this case was wrongly decided. Chagla C.J., held that s. 25 did not confer any Rubstantive right on the landlord to obtain possession and that s. !!9( 3) conferred on the Mam-latda r a discretion to pass any proper order that he thou.'(ht fit. We think, for the reasons earlier sUite<l, that on both these matters the learned Chief Justice was in error. We repeat that under the Act the landlord gets a right to obtain poesePRion of the demised premises on the termination of the tenancy under s. 14 and that s. 25 as also s. 29 cl oar Iy recognises that right.

We turn now to the remaining appeal, namely Civil Appeal No. 259 of IP59. The question raised here is whether for the purposes of s. 25(2) a tenant ''' <1955) I. L. R. Born. 1069.

is to be considered as having failed to pay rent 1061 for anv year in respect of which he had been gran· Roja Rom Mahadev ted relief under s. 25(1 ). The Revenue Tribunal, Paran.iJ'f1t •• following a decision of the High Court at Bombay Aha M:irutilMali in Special Civil Application No. 2073 of 1955, un-Sarkar J. reported, held that where a landlord made an 11ppli<'.ation for possession of the demised land on the failure of the tenant to pa.y rent for a year within the time prescribed in s. 14, and the Mam-latdar granted relief to the tenant under s. 25(1 ), the default was merged in the order of the Mam-latdar and could not thereafter be relied upon for the purposes of s. 25(2). We did not have the original judgment of the High Court placed before us and are not aware of the reasons which persuaded it to the view that it took.

In our opinion, that view is clearly incorrect.

Section 25(2) says that nothing in s. 25-which of course only means sub s. ( 1) of that 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 ins. 14. We are unable to appreciate the conten-tion that when a tenant has been granted relief under s. 25( 1) in respect of any year's default, the default merged in the ordt:r granting relief and ceased to be a default. How can the default for the year merge in an order ? No doubt relief has been given against the consequence of the default for the year, but that does not wipe out the de-fault itself ; it only prevents the termination of the tenancy, if any, consequent thereon, becoming effective. Inspite of the relief granted under s. 25( 1 ), the ten~nt remains a tenant who made default in payi~g rent for the year within the period specified in s. 14 and that is the tenant mentioned in s. 25(2). We fi11J nrt.hing in s. 25(2) to justify the view that in ./lt.Jh a case the year of default cannot be taken into account in computing fhe

!P51 three years there mentioned. It Is of some signi· Roja Ram M oAadtD ficance to point out that s. 25(2) does not require

PtzYan.iJPt three successive years of default but it is satisfied

v. where the tenant has been in default for any three .dba Maruti ~~o/i

years. If the in t~rprrtation put by the High Court S'"kcr J, were to be accepted, then a landlord wishing to

recover possession of his land would have to wait till the tenant has committed default for three yea.rs, for if he took steps earlier and relief was granted to the trnant, he would not be able to recover possession after two more years of default by tho tenant. We see no justification for think-ing that the Act intended to put so much difficulty in the way of landlords.

We, therefore, come to the conclusion that I these :~ppeals must succeed. We eet aside the

orders of the High Court in the cases in which that CourL had born moved and of the Revenue Tribunal and other authorities under the Bombay Act refus. ing to make an order for possession in favour of the hmdlords. We direct that the respondent tenants make over possession of the lands held by them to their respective landlords. The appellants will be entitled to costs throughout.

Appeals allowed.