# RATTAN LAL v. V ARDESH CHANDER & ORS

- **Citation:** [1976] 2 S.C.R. 906
- **Court:** Supreme Court of India
- **Decided:** 1975-12-09
- **Case number:** Civil Appeal No. 1297 of 1975
- **Bench:** Y. V. Chandrachud, V. R. Krishna Iyer, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rattan-lal-v-v-ardesh-chander-ors-6579
- **Pages:** 15

## Headnote

Transfer of Property Act-Secs. 106 and lll(a) and lll(g)-Eviction under
Rent Control Law-Whether de hors Transfer of Property Act-Rules of Justice
equity and good conscience-Whether institutidn of legal proceedings operates
~
as determination of lease-Art. 133 of Constitution-If certificate limited to a
pal"ticular point-Whether other points can be argued-Whether English concepts to be blindly followed.
~
The respondent landlord let out the building in question to the appellant 1
tenant in the year 1954, when the Transfer of Property Act was not appli.cable
to Delhi where the property is situated. The Transfer of Property Act was
made applicable to Delhi i.n the year 1962. In 1967, the respondent filed a
suit for eviction against the appellant without terminating the tenancy under
the Transfer of Property Act on the grounds of unauthorised subletting and
acquisition of alternative accommodation by the· tenant.
A decree for eviction
was passed by the Rent Controller which was affirmed by the ,l\ppellate Tribunal.
In the High Court it was contended by the appellant that neither notice to
quit nor notice of forfeiture determining the tenancy was giYen by the landlord
as required by sections 106 and 111 of the Transfer of Property Act.
The
respondent contended that the lease had expired by efflux of time under secticn
111 (a) and no notice terminating the tenancy was necessary and that forfeiture
of the tenancy caused by the subletting contrary to the terms of the agreement
can be availed of by the landlord even in the absence of a notice as contemplated by section 111 (g). The High Court dismi~ the petition filed by the
appellant but granted a certificate of fitness under Article 133 restricting it to
one grouncl ur11Cd before the High Court.
The respondent raised a preliminarY
objection that since the certificate was granted only on oue point the appellant could not be permitted to make any other submissions.
The appellant contenued that the lease is one where the time is not limited
and, therefore, is terminable only by 15 days notice as required by section 106
of Transfer of Property Act.
The respondent contended that the lease was for a fixed period and expired
by efflux of time. Jn any event a notice in writing is not necessary to terminate
the leas·~. Institution of legal proceedings serves that purpose.
HELD : (1) Once a certificate of fitness has been granted under Article 133,
the appeal. in all its amplitude, is before the Court -and every point may be
urged by the appellant provided this Court permits it haYing regard to the
circumstances. It is however, within the court's discretion not to allow a new
point to be taken up.
[909D-El
(2) The scheme of the Rent Control Law, is to put farther fetters on
landlords seeking eviction where in the absence of such
acute barriers the
landlords would be entitled to ejectment. Even wbere under a particular Rent
Control Statute the landlord makes out grannds for eviction he can institure proceedings in this behalf only if de hors the said grounds he has cause of action
under the Transfer of Property Act. The landlord cannot secure an order for
eviction without first
establishin!! that he has validly determined the lease
under the transfer of Property Act.
[909G-H, 91 lC]
(3) A lease merely stating that it is for a period Iese than one year is
ex-facie for an indefinite period and as such cannot expire by effinx of time.
,
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RATTAN LAL v. v. CHANDER (Krishna Iyer, J.)
907
Nor are we convinced that the acceptance of rent for the period of 11 years
A
does not amount assenting to the holding over of the tenancy by the landlord. f911E-Fl
( 4) The Rent Act contemplates no elaborate proceedings but filling out. of
the particulars in a proforma which takes the place of a plaint. No spec1ryc
a~rment of forfeiture and consequent determination of the lease is found m
~he petition. The question arises whether a written notice of forfeiture for the
breach of the condition of the lease i

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906
RATTAN LAL
v.
V ARDESH CHANDER & ORS
December 9, 1975
(Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]
Transfer of Property Act-Secs. 106 and lll(a) and lll(g)-Eviction under
Rent Control Law-Whether de hors Transfer of Property Act-Rules of Justice
equity and good conscience-Whether institutidn of legal proceedings operates
~
as determination of lease-Art. 133 of Constitution-If certificate limited to a
pal"ticular point-Whether other points can be argued-Whether English concepts to be blindly followed.
~
The respondent landlord let out the building in question to the appellant 1
tenant in the year 1954, when the Transfer of Property Act was not appli.cable
to Delhi where the property is situated. The Transfer of Property Act was
made applicable to Delhi i.n the year 1962. In 1967, the respondent filed a
suit for eviction against the appellant without terminating the tenancy under
the Transfer of Property Act on the grounds of unauthorised subletting and
acquisition of alternative accommodation by the· tenant.
A decree for eviction
was passed by the Rent Controller which was affirmed by the ,l\ppellate Tribunal.
In the High Court it was contended by the appellant that neither notice to
quit nor notice of forfeiture determining the tenancy was giYen by the landlord
as required by sections 106 and 111 of the Transfer of Property Act.
The
respondent contended that the lease had expired by efflux of time under secticn
111 (a) and no notice terminating the tenancy was necessary and that forfeiture
of the tenancy caused by the subletting contrary to the terms of the agreement
can be availed of by the landlord even in the absence of a notice as contemplated by section 111 (g). The High Court dismi~ the petition filed by the
appellant but granted a certificate of fitness under Article 133 restricting it to
one grouncl ur11Cd before the High Court.
The respondent raised a preliminarY
objection that since the certificate was granted only on oue point the appellant could not be permitted to make any other submissions.
The appellant contenued that the lease is one where the time is not limited
and, therefore, is terminable only by 15 days notice as required by section 106
of Transfer of Property Act.
The respondent contended that the lease was for a fixed period and expired
by efflux of time. Jn any event a notice in writing is not necessary to terminate
the leas·~. Institution of legal proceedings serves that purpose.
HELD : (1) Once a certificate of fitness has been granted under Article 133,
the appeal. in all its amplitude, is before the Court -and every point may be
urged by the appellant provided this Court permits it haYing regard to the
circumstances. It is however, within the court's discretion not to allow a new
point to be taken up.
[909D-El
(2) The scheme of the Rent Control Law, is to put farther fetters on
landlords seeking eviction where in the absence of such
acute barriers the
landlords would be entitled to ejectment. Even wbere under a particular Rent
Control Statute the landlord makes out grannds for eviction he can institure proceedings in this behalf only if de hors the said grounds he has cause of action
under the Transfer of Property Act. The landlord cannot secure an order for
eviction without first
establishin!! that he has validly determined the lease
under the transfer of Property Act.
[909G-H, 91 lC]
(3) A lease merely stating that it is for a period Iese than one year is
ex-facie for an indefinite period and as such cannot expire by effinx of time.
,
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RATTAN LAL v. v. CHANDER (Krishna Iyer, J.)
907
Nor are we convinced that the acceptance of rent for the period of 11 years
A
does not amount assenting to the holding over of the tenancy by the landlord. f911E-Fl
( 4) The Rent Act contemplates no elaborate proceedings but filling out. of
the particulars in a proforma which takes the place of a plaint. No spec1ryc
a~rment of forfeiture and consequent determination of the lease is found m
~he petition. The question arises whether a written notice of forfeiture for the
breach of the condition of the lease is obligatory in terms of section U l(g)
or whether written notice of forfeiture can be dispensed with as being no part
of the equity or justice but a technical or formal statutory requirement. Before the amendment of Transfer of Property Act in !929 all that was necessary for the lessor to determine the demise on forfeiture was to do some act
showing his intention to determine the Jease.
The rule of English Law before
the enactment of the Jaw of Property Act, 1925, a,ppears to be that a suit for
cjectment jg equivalent to a re-entry. The appellant did not urge, in the High
Court that the Transfer of Property Act was applicable in its own force.
We
decline. our discretion to allow the appellant to travel into the new statutory
territory of section 111 (g). [911G-H, 913A, D-E, 916C]
(5) In India and in other colonies throughout the Imperial Era a tacit
assumption had persuaded ti)(l courts to embrac_e English Law (the civilizing
mission of the masters) as justice, equity and good conscience.
Unfortunately,
even .after liberation, this neo colonial jurisprudence was not shaken off. Free
India has to find its conscience in our rugged realities and no more in alien
legal thought. So viewed, the basic question is what is the e9Sence of equity
in the matter of determination of a lease on the grounds of forfeiture caused
by the breach of a condition. The substance of the matter-the justice of the
situation-is whether a condition in the lease has been breached and whether
the lessor ha~ by some overt act brought home to the lessee his election to eject
on the strength of the breach. The touchstone is simply whether the formal
requirement of' the law is part of what is necessarily just and reasonable. Jn
this .perspective the conclusion i~ clear that a notice in writing formally determining the tenancy is not a rule of justice or canon of commonsense. Realism
married to equity being the true test, we are persuaded that pre-amending Act
provision of section 111 (g) is in consonance with justice. The mere institution
of the legal proceeding for eviction fulfills the requirements of law for determina.
tion of the lease. The conscience of the Court needs nothing more and nothing
less. The essential principles, not the. technical rule~, of the Transfer of Property Act form part of justice, equity and good conscience. (9160, 917A, D, E-F,
919B-C, 920AJ
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1297 of 1975.
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From the judgment and order/decree dated the 30th May, 1975 of
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the Delhi High Court in S.A.O. 43 of 1973.
A. K. Sen, R. L. Kohli, S. K. Bagga, Mrs. S. Biigga and Miss Yash
Bagga for the Appellant.
Y. S. Chitaley, R. P. Singh, R. K. lain
and M. Mudgal
for
Respondent No. 1.
The Judgment of the Court was delivered by
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KRISHNA IYER, J.
This fifth deck appeal, by certificate under Art.
133 of the· Constitution, stems from a humdrum but protected litigation
under the rent control law by a tenant who has lost all alone the way.
If we may prologise,, this special law hopefully set up a quasi-judicial
machinery for summary tdal and speedy disposal and prescribed eviction
save upon simple grounds safeguarding the security of tenants of buildH
ings against being inequitably ejected.
But this very case discloses the
chronic distortion in processual justice, caused by a slow-motion spiral
of appeals and plethora of technical pleas defeating t_he statutory design.
3-277 SCJ/76
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908
SUPREME COURT REPORTS
(1976] 2 S.C.R.
The obvious legjslative policy and project in this class of simplistic
landlord-tenant litigation demands a radically non-traditional judicial
structuring and legal engineering, by-passing sophistications and formalisms and tier-upon-tier of judicial reviews.
Both these imperatives are
conspicuously absent in current rent control litigation-a dismal failure
which the legislature will, we hope, awaken to rectify.
Post-audit of
socio-economic laws in action, with a view to over-see if legal institutions and iural postulates actually achieve legjslatively mandated objectives in special classes of dispute-proceessing, makes for competent and
credible implementation of laws and saves the time of the higher courts
and the money of the public at present consumed exasperatingly but
avoidably.
The price of legislative inaction in these areas is popular
disenchantment with laws and tribunals.
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The appellant is the tenant of a building in Delhi having been induct-
. ed into possession by the respondent-landlord under a Jetting of May
19, 1954, evidenced by a deed which fixed the term merely as less
than a year (a circumstance out of which a minor ripple of legal argument has arisen).
At the time of the lease the Transfer of Property
Act, 1882 (for short, the TP Act), had not been extended to Delhi
although, later, on December_ I, 1962, the said Act was made applicable
to this area.
The landlord had been receiving rent from the tenant
until the time he filed a petition for eviction (1967), the statute which
regulated the right to eviction being: the Delhi Rent Control Act, 1958
(59 of 1958) (for short, the Rent Act). The eviction petition set out
two grounds out of the many specified in s. 14 of the Rent Act, viz.,
unauthorized sul>--letting of a portion of the premises and possession,
by the tenant, of alternative accommodation. Both these grounds having been made out, the evictibility under the Rent Act became inevitable.
But, in the High Court, the appellant-tenant fell back on certain
defences grounded on ss. 106 and 111 of the TP Act on the score that
no notice to quit had been gjven, nor notice of forfeiture, as prescribed
by those sections. There is no dispute that neither notice to quit nor
notice of forfeiture determining the tenancy had been given by the landlord. The core of the controversy thus turns on the need to comply
with the requirements of ss. 106 and/or 111 of the TP Act and the
fatal effect of failure in this behalf.
The landlord seeks
to break
through these defences by urging that the lease has expired by efflux
of time limited thereby under s. 111 (a) and no notice terminating the
tenancy under s. 106 is needed and further that the forfeiture of the
tenancy caused by sub-Jetting contrary to the terms of the deed of
demise can be' availed of by the landlord even in the absence of a notice
as contemplated by s. 111 (g) because the TP Act, as amended by the
Amending Act of 1929,, did not, in terms, apply to the present lease and
the principles of justice, equity and good conscience, which alone applied, did not desiderate the technical requirement of a notice in. writing
of an intention to determine the lease.
The Rent Controller, at the floor level, ordered eviction. and the
Appellate Tribunal affirmed it, upholding the vice of sub-letting without consent of the landlord in the manner specified in s. 14( 1) (b) as
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RATTAN LAL v. v. CHANDER (Krishna Iyer, J.)
909
also the disability spelt out in s. 14( 1) (h) on acquiring vacant possesA
sion of alternative residence.
The resistence founded on the TP Act
was also over-ruled by the appellate Tribunal.
But, when the case
Teached the High Court in second appeal, under s. 39 of the Rent Act,
the learned Single Judge felt that certain points of law spun out of the
TP Act deserved consideration by a Division Bench and referred the
appeal for determination accordingly to a larger Bench. The Division
Bench which heard the appeal dismissed it but granted a certificate of
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fitness for appeal to the Supreme Court under Art. 133 of the Constitution, restricting it, however, to but one ground urged before it. Shri A.
K. Sen, for the appellant, made a gentle hint that the High Court had
heard long arguments in March 1974 but could resolve its doubts to
.deliver a judgment only in May 1975 so much so the freshness of counsel's submissions might have faded somewhat and so we should have a
.closer look at his points de hors the judgment under appe.al.
If this
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fact of a long hiatus between hearing aud decision were true, it must
have inflicted a heavy strain on the memory of the learned Judges
which it is a healthy practice to avoid.
However, after listening to
.Shri A. K. Sen, we feel that his fears are unfounded.
A preliminary pre-emptive objection was urged by the respondent
that the High Court having circumscribed the certificate to a single point
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no other submissions should be permitted.
We see no force in this
untenable insistence on tying down the appellant.
Once a certificate
of fitness has been granted under Art. I 33, the appeal, in air its amplitude, is before this Court and every point may be urged by the appellant
provided this Court permits it,, having regard to the circumstances. Perhaps, a certificate under Art. 132, or special leave under Art. 136 may
stand on a different footing if the Court limits the grounds in
any
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manner.
Of course, conceding the Court's plenary power in appeals
on certificate under Art. 133, it is still within the Court's discretion not
to allow a new point to be taken up [The rulings in 1963(2) SCR 440
and 1964(2) SCR 930 lay down the law on this point].
The contentions
We have already indicated that, under the Rent Act two grounds for
eviction have been good by the landlord. Indisputably, sub-letting has
been substantiated.
Even so, it is argued that only where a lease has
been duly determined giving rise to .a right to present possession under
the TP Act can the landlord sue for recovery of the building.
The
scheme of the Rent Control law, speaking generally, is to put further
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fetters on landlords seeking eviction from urban buildings where,, in the
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absenc,e of such new barriers, they will be entitled to ejectment.
The
acute scracity of accommodation is the raison de'etre of the law. It
is not as if the rent control statutes are a bonanza for the landlords and
confer a relaxed right to eject where, under the general law, they do
not have such a right in praesenti.
To hold otherwise is to pervert the
purpose and substitute an added danger for an extra dyke.
It follows
that even wher.e under a particular rent control statute the landlord
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makes out grounds for eviction, he can institute proceedings in this
behalf only if de hors the said grounds he has cause of action under
the TP Act.
910
SUPREME COURT REPORTS
[1976] 2 S.C.R.
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We agree that, if the rent control legislation specifically provides
grounds for eviction in supersession, not in supplementation, of what
is contained in the T.P. Act, the situation may conceivably be different.
But, in the Delhi R@nt Act,, as in many other like Statutes, what
is intended to be done is not to supplant but to supplement, not to
eliminate the statutory requirements of determination of tenancy but to
superimpose a ban on eviction which otherwise may be available in
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conformity with the 1'P Act without fulfilment of additional grounds.
'No order . . . for the recovery of possession of any premises shall be
made . . . in favour of the landlord against a tenant' is a blanket ban
ins. 14(1) of the Ren~ Act.
It is followed by enumeration of specific
grounds proof of which may authorize the Controller to make an order
for the recovery of possession of the premises. It follows that before
a landlord can institute proceedings for recovery of possession, he has
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to make out his right (a) under the TP Act; and (b) under the Rent
Act.
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In Manujendra Dutt(1) this Court considered the question elaborately and observed :
"The Thika Tenancy Act like similar Rent Acts passed
in different States is intended to prevent indiscriminate eviction of tenants and is intended to be a protective statute to
safeguard security of possession of tenants
and therefore
should be construed in the light of its being a social legislation. What section 3 therefore does is. to provide that even
where a landlord has terminated the contractual tenancy by
a proper notice such landlord can succeed in evicting his tenant provided that he falls under one or more of the clauses
of that section.
The word 'notwithstanding' in section 3
on a true construction therefore means that even where the
contractual tenancy is properly terminated, notwithstanding
the landlord's right to possession under the Transfer of Property Act or the contract of lease he cannot evict the tenant
unless he satisfied any one of the grounds set out in section
3. Rent Acts are not ordinarily intended to interfere and with
contractual leases and are Acts for the protection of tenants
and are consequently restrictive and not enabling, conferring
no new rights of action but restricting the exis~ing rights either
und·~r the contract or under the general law.
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The right to hold over, that is, the right of irremovability,
thus is a right which comes into existence after the expiration
of the lease and until the lease is terminated or expires by
efflux of time the tenant need not seek protection under the
Rent Act. For,, he is protected by his lease in breach of
which he cannot be evicted.
(See Maghji Lakshamshi and
Bros v. Furniture Workshop-[1954] AC
80,
90).
In
Abasbhai v. Gulamnabi (AIR 1964 SC 1341), this Court
clearly stated that the Rent Act did not give a right to the
(1) [1967] 1 S. C. R. 475.
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RATTAN LAL v. v. CHANDER (Krishna Iyer, J.)
911
landlord to evict a contrac,tual tenant without first determining the contractual tenancy.
In Mangilal v. Sugan Chand
(AIR 1965 SC 101 ) while construing section 4 of the Madhya
Pradesh Accommodation Control Act (XXIII of 1965), a
section similar to section 3 of the present Act, this Court held
that the provisions of sedion 4 of that Act were in addition
to those of the-Transfer of Property Act and therefore before
a tenant could be evicted by a landlord, he must comply
with both the provisions of section 106 of the Transfer of
Property Act and those of section 4.
The Court further
observed that notice under section 106 was essential to bring
to an .end the relationship of landlord and tenant and unless
that relationship was validly terminated by giving a proper
notice under s. 106 of the Transfer of Property Act, the
landlord could not get the right to obtain possession of the
premises by evicting the tenant (See also Haji Mohammad
v. Rehati Bhushan-53 C.W.N. 859)."
We are inclined to hold that the landlord in the present case cannot
secure an order for eviction without first establishing that he has validly
determined the lease under the TP Act.
We am therefore thrown back to an examination of the argument
pressed by the appellant-tenant that independently of the rent· control
law, the respondent has no subsisting cause of action.
The contention .is two-fold.
Firstly, the lease is one where the time is not limited
and therefore s. 111 (a) will not apply and is terminable on the part
of the lessor only in the manner provided by s. 106, i.e., by 15 davs'
notice expiring with the end of the month of the tenancy.
Admittedly,
no such notice was given.
The counter-contention of the landlord,
apart from the plea of statutory tenancy requiring no further notice
to determine, is that. the lease is for a specified period even though it
expresses itself as for a term less than one year and under s. 111 (a) has
expired by efflux of time.
We cannot agree to this feebly asserted
argument.
A lease merely stating that it is for a period less than
one ye~ir is ex facie for an indefinite period and, as such, cannot expire
by effiux of time.
Nor are we convinced that, notwithstanding
the
acceptance of rent for the period of 11 years the landlord had not assented to 'the holding oVel'; of the tenancy and that what emerged was a
statutory tenancy wpich did not require notice in law for valid determination. Possibly so; not necessarily. However, we need not explore
this aspect further in the view that we take of the other submission of
the landlord that the lease has been determined by forfeiture, not in
terms of s. 111 (g) of the TP Act, but on the application of the principles of justice, equity and good conscience.
We will examine this
latter contention in so:me detail, as it is decisive of the fate of. the
case.
The Rent Act contemplates! no elaborate pleadings but filling out of
particulars in a pro forma which takes the place of a plaint.
No specific averment of forfeiture and consequent determination of the lease is
found in the petition.
Having regard to the comparative ,informality
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SUPREME COURT REPOR'fS
(1976] 2 S.C.R.
of these proceedings and the quasi·judicial nature of the whole pro--
cess, such an omission cannot be exaggerated into a lethal infirmity.
What is perhaps more pertinent is that the petitioner was innocent of
the plea of forfeiture throughout the stages of the trial before the Rent
Controller. When the case reached the appellate stage, it was specifically urged that the tenancy 'stood terminated by forfeiture under s. 111
(g) of the TP Act. The Tribunal studied the terms of the rent deed,
Exhibit AW 3/1 and held that there was an express condition against
sub-letting and a provision that on breach thereof the lessor had the
right to move for eviction-something equivalent to a right to re-enterThe tenant remonstrated against this new plea being
permitted
in
appeal but the Court construed the statement in the pro-forma in column
18-B, that no notice is necessa_ry, to mean that there was a determination by forfeiture even without the issuance of a notice.
Moreover, the Court noticed the fact that the question was only one of law
and should be permitted in the interests of iustice.
After some consideration of the issue the Tribunal reached the result 'that the tenancy
stood determined by forfeiture and therefore no notice was required'>
We need not tarry further on the tenability of this conclusion since the
matter has been more fully examined at the High Court leveL
Arguments before us have proceeded on the footing that a subtenancy has been created· and this amounts to a breach of condition
with a provision for re-entry.
The tribunal in appeal held that no
notice wa_s necessary since the lease was created prior to the extension of the TP Act to Delhi. Although there is some confusion in this
order about the determination of the lease being under s. 111 (g) or
outside it, the thrust of the holding is found in
these
concluding
words:
"However, as held by the Supreme Court in Narender,
Lokmanya Lodhi v. Narmada Bai & Ors. 1953 SC 228 the
provisions in s. 111 (g) as to notice in writing as a prelimi- ·
nary to a suit for ejectment based on forfeiture of a lease is
not based on the principles of justice, equity or good conscience and would not govern the bases made prior to the
coming into the force of the TP Act or to a lease executed
prior to the coming into force of the TP Act. . The lease
in question was admittedly created before. December 1, 1962
and, therefore, the requirement of the notice in writing could
not be insisted upon."
Jn short, the clincher was 'justice, equity and good conscience'.
The critical phase of the case thus beckons us, the last court of
law and justice, to the final valley of the forensic battle.
Does the
TP Act apply to a lease executed prior to the. extension of that ~ct
to the area even though the event that determmes the tenancy viz.,,
forfeiture
~ccurs after such extension? Secondly, if the TP Act does
not apply' proprio vigore to such demises and thei.r determi~ation, can
the principles of jus_tice, equity and good consc!ence be mv?ked to
transplant the twin rules in s. 111 (~) of the said .Act?
Th1~dly,
and this is the crux of the matter-if such transfusion 1s perm1ss1ble,
•·
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RATTAN LAL v. v. CHANDER (Krishna Iyer, J.)
913
is the synergetic operation of breach of a condition of the lease providing for re-entry and a written notice of forfeiture on that score obli~a
tory in terms of s. 111 (g) or can written notice of forfeiture be dispensed with as being no part of equity or justice bat a. technical or
formal statutory requirement ? What, in short, is the· status of the
formula of justice,, equity and good conscience, in the legal pharmacopoeia of India '?
Shri A. K. Sen urges that the procedural interdict against raising the
objection based on s. 111 (g) ,is of no consequence.
While the Jaw
goes to the root of the case and is perfectly plain and the facts indubitably manifest on the record, the refusal to examine and uphold the
objection, if valid, is 1o surrender the judicial function of doing justice
according to Jaw at the illeg,itimate altar of technical inhibition. Moreover, he argues, the plea based on s. 111 (g) in some form or other,
is writ large in. the Tribunal's order and the High Court's judgment.
New nuances and clearer focus may be allowed where the point of
Jaw has been broadly touched upon.
Face to face with the issue of
forfeiture under s. 111 (g), the appellant presses the position that since
admittedly no notice in writing, as laid down in the section, has been
issued,, the eviction proceeding can be shot down by, that legal missile
alone.
Before the amending Act of 1929, all that was necessary for the
lessor to determine the demise on forfeiture was to do 'some act showing his intention to determine the lease'.
The rule of English law
before the enactment of the Law of Property Act, 1925 appears to be
that a suit for eiectment is equivalent to re-entry. It has been held in
India that an act showing the lessor's intention to determine the lease
can take the form of the_ institution of an action in ejectment.
The
statutory law, as it now stands, however is· that the happening of any of
the events specified in s. 111 (g) does not, ipso facto, extinguish the
lease but only exposes the lessee to the risk of forfeiture and clothes
the lessor with the right, if he so chooses, to determine the lease, by
giving notice in that behalf.
Mulla states the law correctly thus :
"Forfeiture of a lease requires the operation of two factors : ( 1) A breach by the lessee of an express condition of
the lease which provides for re-entry on such breach and
(2) a notice by the lessor expressing his intention to deter-_
mine the lease."
(Mulla on TP Act,, p. 746-747, 6th Ed.)
The noti~e has to be in writing.
In Namdeo Lokman Lodhi(l) this
Court laid down the Jaw to the same effect.
Mahajan J.,
observed:
B
c
D
E
F
G
. "Section, 111 (g) in the terms makes the further act an
integral condition of the forfeiture.
In other words without
this act there is no completed forfeiture at all.
Under the
H
old section an overt act evidencing the requisite intention was
(1) [1953] S. C.R. 1009, 1015.
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[1976] 2 S.C.R.
essential.
As the Jaw stands today, under the Act, notice in
writing by the landlord is a condition precedent to a forfeiture anp the right of re-entry."
It cannot be gainsaid that a notice, as envisioned in s. 111 (g) not
having been given to the lessee in the present case, determination of
the demise under s. 111 (g) cannot be claimed by the lessor. Thus,
if the fortune of the landlord were to turn on the application of the
TP Act as it stands now, the ejectment proceeding must be rebuffed.
Coun~el for the respondent seeks to sustain his case on the submission that the TP Act does' not apply to the lease fo question and therefore a forfeiture giving rise to a determination of the lease follows
upon breach of a condition in the lease, to wit, sub-lease of a portion
of the building, plus an act indicative of the landlord's intention to
terminate the tenancy. According to counsel, in the absence of a specific statutory provision, the rules of justice, equity and good conscience govern the situation and this element is amply fulfilled by the filing
of the eviction petition itself.
We are, therefore, called upon to consider whether the provisions of the TP Act apply to the lease of 1952
executed in Delhi and, secondly, if it does not,, whether its present
provision, as amended in 1929, has to be treated as a rule of justice,
equity and good conscience, or the mere institution of legal proceedings
for ejectment would be ta_ntamount to an act evidencing the intention
of the lessor to avail himself of the forfeiture clause and sufficient to
satisfy justice, equity and good conscience.
A little legal history helps to appreciate this part of the controversy.
The TP Act came into force on July 1, 1882; but it extended in the
first instance to the whole of India except certain saved territories including Delhi. It was actually extended to Delhi only in 1962. Section 2(c) of the Act provides that 'nothing herein contained shall be
deemed to affect any right or liability arising out of a legal relation
constituted before this Act comes into force, or any relief in respect
of any such right or liability'.
There is some dispute as to what
'nothing herein contained' connotes.
Shri A. K. Sen submitted that
the Act had come into force as early as 1882 and while transactions
created before that date (July 1, 1882) would not be affected by its
provisions, subsequent transactions would be governed by that Act
even though they II_Iay have been executed before the extension of the
Act to a particular area.
His brief contention was, to start with, that
even if the Act was extended to Delhi in 1962, once it was so extended
the whole Act came into force in its totality in that area and only those
transactions which were expressly saved by s. 2 viz., 'legal relations
constituted before this Act comes into force' escaped from its operation.
So inuch so the present lease being of 1954 would be covered
by s. 111 (g). Our attention was drawn by him to s. 63 of the Amending Act in this connection.
Shri Chitaley, for the respondent, countered this contention by another extreme stand. According to him, the Act came into force in
Delhi only when it was extended to that place, viz., in 1962.
Therefore, transactions prior to that date swam out of its operation altogether.
A third possibility, a sort of via media or golden mean, also
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RATTAN LAL v. v. CHANDER (Krishna Iyer, J.)
915
came up for C()nsiderarjon as a close-up of the relevant provisions was
taken.
This view was that while transactions which came into existence in an area before the Act was extended to that area, would be
tested for their validity by the law extant when the transaction was
entered into, the remedies and other incidents would be conditioned by
the TP Act if it had been extended to the area when the remedy was
sought to be enforced. Shri Chitaley wanted us to accept Namdeo
(supra) as an authority for his proposition and relied on certain passages therein. The problem presented before us cannot be disposed of
in an easy fashion and deserves serious examination. In the present case,
we are relieved of that obligation for the weighty reason that the appellant has all along staked his case on the application of the rules of
justice, equity and good conscience and not on the textual rigour of
s. 111 (g) applied proprio vigore.
We have already indicated that although this question was not
canvassed before the trial Court, the appellate tribunal did consider it
as a point of law.
In doing so, the learned Tribunal applied what he
considered to be the principles of justi<;e,, equity and good conscience
and dispensed with the drastic insistence on notice in _writing. In the
High Court, the position taken up by the appellant did not disturb the
application of justice, equity and good conscience. On the contrary,
the Division Bench emphatically asserted that the appellant never disputed this proposition.
Indeed, both in regard to notice to quit and
notice of forfeiture, the appellant accepted the application, not of the
TP Act as such, but of the rules of justice, equity and good conscience.
We may as well except the relevant statement in the judgment of the
High Court:
"In the present case, the provisions of the TP Act had
not been extended to Delhi during the material period and
these provisions would,, therefore, not be applicable to the
tenancy in question.
It was not disputed before us that in
view of this only such of the principles embodied in the provisions of ss. 106 and 111 of the TP Act would regulate the
matter as could be held to be consistent with the rules of
equity, iustice and good conscience. It was also not disputed
before us that even though the provision of section 106 of
the TP Act laying down the manner in which a tenancy may
be terminated are technical in character, in that they require
such termination 'by fifteen days' notice expiring with the end
of the month of the tenancy'.
It would be consistent with
the requirements of equity, justice and good conscience that a
tenant has reasonable notice of termination even though it
does not expire with the end of the month of a tenancy. It
was also not disputed that in the present case, no notice
whatever was sent to the tenant of the application for eviction
when the notice was sought to be justified on the ground that
no such notice was necessary because the
tenancy stood
determined either by efflux of time limited thereby in terms
of the principle embodied in s. 111 (a) of the TP Act or by
forfeiture following the breach by the tenant of the express
condition regarding sub-letting in terms of the
principles
embodied in s. 111 (gl of the said Act."
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SUPREME COURT REPORTS
[1976] 2 S.C.R.
If the appellant's case was that the TP Act applied of its own
force, he would have urged so in the High Court, especially because the appellate tribunal had dealt an eviction blow on him by
applying the rules of justice, equity and good conscience. Moreover,.
the categorical statement in the judgment of the High Court confirms
the view that the appellant stuck to his stance of justice, equity and
good conscience.
Nay more.
Even in the grounds of appeal to this.
Court,, he has only harped on justice, equity and good conscience and
invoked s. 111 (g) as embodying equity and good conscience.
For
the first time he has, by a volta face, switched to the TP Act as against
the rules of justice, equity and good conscience. It is too late in the
day to set up a new case like that. There are many reasons why. Even
though we have power to permit a new plea, we should not exercise it
here. We decline our discretion to allow the appellant to travel into
the new statutory territory of s. 111 (g). He has to stand or fall by
his submission that justice, equity and good conscience is the alter ego
of s. 111 (g) of the TP Act in its dual requirements of (a) the breach
of a condition providing for re-entry and (b) notice in writing to the
lessee of an intention to determine the lease.
Once we assume the inapplicability of the TP Ac~ to the lease in
question-an assertion of the respondent which we do not feel compelled to consider in this appeal-we are confronted by the concept of
justice, equity and good conscience which, admittedly, comes into play
in the absence: of any specific legislative provision.
In India and in
other colonies during the Imperial era a tacit assumption had persuaded
the courts to embrace English law (the civilizing mission of the masters)
as justice, equity and good conscience.
Throughout the Empire,, in
Asia and Africa, there was an inarticulate premise that English law
was a blessing for the subject peoples.
Robert M. Seidman writes.
about Sudan :
"The courts were simply directed to decide cases on the basis
of 'justice, equity and good conscience' [Civil Justice Ordinance, 1929, Ch. 9, 10 Laws of the Sudan 13 (1955)]. However, the judges were all English lawyers; and with magnificient insularity it developed that 'justice, equity and good conscience' meant not merely English common law but English
statutory law as well.
The_ author has been told by
an
English barrister who tried a case in the Sudan some years
ago that he was amazed to discover that 'justice, equity and ·
good conscience' meant in his case the English Sales of Goods
Act,, 1862."
(Law and Economic Development in Independent, EnglishSpeaking, Sub-Saharan Africa-Wisconsin Law Review Vol.
1966, Number 4, Fall)
The Judicial Committe.e of the Privy Council struck a similar nok: in
Maharaja of Jeypore v. Rukmani Pattamahadevi( 1)
where Lord
Phillimore stated :
"They are directed by the several charters to proceed
where the law is silent, in accordance with justice, equity,
(1) A.I.R.1919P.C. l.
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RATTAN LAL v. v. CHANDER (Krishna Iyer, !.)
9 17
and good conscience, and the rules of English law as to
A
forfoiture of tenancy may be held and have been held to be
consonant with these principles and to be
applicable
to
India."
Unfortunately, even after liberation, many former colonies, including
India, did not shake off this neo-colonial jurisprudence (See A.LR.
1950 Born. 123). This is the genesis of the idea that Indian 'good
conscience' is English Common Law during the reign of Empress
Victoria ! The imperatives of Independence and the jural postulates
bas·::d on the new value system of ai developing country must break off
from the borrowed law of England received sweetly as 'justice, equity
and good conscience'.
We have to part company with the precedents
of the British-Indian period tying our non-statutory area of law to vintage English law christening it justice, equity and good conscience'.
After all, conscience is the finer texture of norms woven from the ethos
and life-style of a community and since British and Indian ways of
life vary so much that the validity of an anglophilic bias in Bharat's
justice, equity and good conscience is questionable today.
The great
values that bind law to life, spell out the text of justice, equity and
good conscience and Cardozo has crystallised the concept thus :
"Life casts the mould of conduct which will some day
become fixed as law."
Free India has to find its conscience in our rugged realities and no
more in alien legal thought.
In a larger sense, the insignia of creativity in law, as in life, is freedom from subtle alien bondage, not a silent
spring nor hot-house flower.
So viewed, the basic question is : What is the essence of equity
in the matter of determining a lease on the ground of forfeiture caused
by the breach of a condition ?
Can any technical formality be exalted
into a rule of equity or should a sense of realism, read with justice,
inform this legal mandate ? If Law and Justice-in the Indian context·-must speak to each other, statutory technicality such as 'notice
in writing' prescribed in s. 111 (g) of the TP Act cannot be called a
rule of equity. It is no more than a legal form binding on those transactions which are covered by the law by its own force.
The substance
of the matter-the justice of the situation-is whether a condititJn in
the lease has been breached and whether the lessor has, by some overt
act, brought home to the lessee his election to eject on the strength
of the said b'reach.
This Court, in Namdeo (supra) has explained the rule of justice,
equity and good conscience. It observed, at p. 101 S :
"It is axiomatic that the courts must apply the principles
of justice, equity and good conscience to transactions which
come up before them for determination even though
the
statutory provisions of the Transfer of Property Act
are
not made applicable to these transactions.