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TMI Blog1959 (9) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not disputed applied to this tenancy contained provision for termination of tenancy in its s. 14. 2. The defendant-appellant admitted that rent for three successive years had not been paid but contended inter alia that the plaintiff was not entitled to an order for possession of the property as he had not given notice that he was entitled to obtain possession of the same under the rent agreement and that he had terminated the tenancy. The Mamlatdar overruled this contention and made an order for possession in favour of the plaintiff-respondent subject to the condition that the tenancy of the sub-tenants would not be disturbed. 3. On appeal the Collector of Kanara held that the Mamlatdar who had made the order had no power under the Bombay Tenancy Act and so had no jurisdiction to make such an order. He also held that the plaintiff-respondent was not entitled to an order for possession as the tenancy had not been terminated by due notice. Accordingly, he allowed the appeal and set aside the order of the Mamlatdar. 4. Against this order the landlord (plaintiff-respondent) appealed to the Bombay Revenue Tribunal. Before that Tribunal the question of the Mamlatdar's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari. These propositions are well-settled and are not in dispute. 7. Besides the above three propositions, a fourth proposition as to which there appears to have been some controversy, was also discussed, namely, whether certiorari can be issued when the decision of the inferior Court or Tribunal is erroneous in law. After referring to certain reported decisions, English as well as Indian, the position was thus summarised by this Court at p. 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 error; it must be one which must manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 12, has failed to deposit within 15 days from the aforesaid date with the Mamlatdar or the Collector, as the case may be, a sum equal to the amount of rent which he would have been liable to pay for that year if no such application has been made, or (iii) in case the reasonable rent determined under section 12 is higher than the sum deposited by him, has failed to pay the balance due from him within two months from the date of the decision of the Mamlatdar or the Collector, as the case may be; (b) has done any act which is destructive or permanently injurious to the land; (c) has sub-divided the land; (d) has sub-let the land or failed to cultivate it personally; or (e) has used such land for a purpose other than agriculture. 2. In the case of a tenant, the duration of whose tenancy is for a period of 10 years or more, the tenancy shall terminate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itive overt act on the part of the landlord, an act of the landlord actually exercising his option to terminate shall be required in the cases under sub-s. 1 of s. 14 before there is an effective termination. In exercising that option it is urged the landlord must communicate his intention to do so to the other party to the contract, viz., the tenant. 12. The learned judges of the High Court point out that s. 24 of the Bombay Tenancy Act provides for a notice in writing before a proceeding for ejectment will lie where the termination is said to be on the ground set forth in s. 14(1)(b), viz., that a tenant has done any act which is destructive or permanently injurious to the land and point out that no provision for such notice has been made for any of the other cases contemplated by s. 14(1). The rival argument is that the provision for notice under s. 24 where the termination is on the ground whether the tenant had done any act which is destructive or permanently injurious to the land is to give the tenant a chance of remedying the injury committed and has nothing to do with the fact of termination, and that the Legislature might, if it had thought fit, also have enacted provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not consider the language in s. 25 to see whether the Legislature's intention was that the termination should take place prior to and independent of, filing of the proceedings. The use of the word and in 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 . . . . is, it is said, a justification for the conclusion that the Legislature contemplated and intended that in all cases of termination on non-payment of rent the termination should take place first and after the termination was completed the landlord was at liberty to file proceedings to eject the tenant. If this contention be correct there would be no justification for thinking that the Legislature's intention was different in this matter where the non-payment was for three years. 15. This brings us to the consideration of the effect of s. 3 of the Bombay Tenancy Act. The section runs thus :- 3. The provision of Chapter 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Transfer of Property Act which will apply to the tenancy in the present litigation are of clause (g) as it stood before the Amending Act was passed. This argument however is repelled by pointing out that s. 3 of the Bombay Tenancy Act makes no distinction whatsoever as between tenancies and leases made before April 1, 1930, and those made after but instead it says generally that the provisions of Chapter 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. It has been suggested that the proper way of approaching this question is to read as a proviso to s. 111(g) as well as the other sections mentioned in s. 63 of the Amending Act, the words the terms or incidents of any transfer of property made effective before April 1, 1929, will not be affected hereby. Is this a correct approach to the problem ? When the Bombay Legislature spoke of the provisions of Chapter V of the Transfer of Property Act, 1882, did they have in their mind the Transfer of Property Act as it stood actually in the Statute Book and not as it would have stood with such a prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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