# SUPREME COURT REPORTS [1960(1)] SATYANARAYAN LAXMINARAYAN HEGDE AND OTHERS v. MILLIKARJUN BHAVANAPPATIRUMALE

- **Citation:** [1960] 1 S.C.R. 890
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 189of1955
- **Bench:** S. R. Das, M. Hidayatullah, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1960-1-satyanarayan-laxminarayan-hegde-and-others-v-1838
- **Pages:** 13

## Headnote

Writ of certiorari-Error apparent on the face of the recordT ermination of t<nancy--Question of necessity of notice to ltsseeRevenue Tribunal's decision reversed by High Court-LegalityConstitution of India, Art. 227.
The respondent made an application to the Revenue Court
for delivery of possession from his tenant, the appellant, on the
footing that the latter failed to pay the rent for three consecutive
years and so was entitled to get pos;ession from him as per the
terms of the lease. The appellant pleaded inter alia that the
respondent was not entitled to an order for possession 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 Revenue Court made an order in favour of the
respondent but, on appeal, the Collector set aside the order. The
Collector's order was confirmed by the Bombay Revenue Tribunal
which took the view that the Bombay Tenancy and Agricultural
Lands Act, 1948, was applicable to the lands in question but that .
the respondent must fail because he had failed to terminate the
tenancy by notice before taking proceedings for ejectment. The
respondent then applied to the High Court of Bombay under
Art. 227 of the Constitution of India, praying that it might
eicercise its power of superintendence over the Bombay Revenue
Tribunal and set aside its order. The High Court was of the
opinion that the Tribunal had committed an error which was
apparent on the face ol the rec0rd in holding that an order of
possession could no~ be made unless a notice terminating the
tenancy had been given before the institution of proceedings and,
accordingly, it quashed the order of the Tribunal and restored
that of the Revenue Court. The question was whether there was
an error apparent on the face of the judgment of the Bombay
Revenue Tribunal which the High Court could quash by issuing
a writ of certiorari.
In order to decide whether it was necessary
for the landlord to give notice to the lessee of his intention to
determine the lease, the relevant provisions of the Bombay
Tenancy and Agricultural Act, 1948, and the Transfer of Property,
1882, had to be considered and the rival contentions of the
parties showed that the point was far from being self evident
and could be established only by lengthy and complicated
arguments.
S.O.R.
SUPREME COURT REPORTS
891
Held, that the High Court was wrong in thinking th.at the
alleged error in the judgment of the Bombay Revenue Tribunal
was one apparent on the face of the record so as to be capable of
being corrected by a writ of certiorari.
An error which has to be established by a long drawn porcess
of reasoning on points where there may conceivably be two
opinions cannot be said to be an error apparent on the face of the
record.
Hari Vishnu K·1math v. Syed Ahmed Ishaque, [1955] I S.C.R.
no4, relied on.

## Text

z959
Septembet' a5.
890
SUPREME COURT REPORTS [1960(1)]
SATYANARAYAN LAXMINARAYAN HEGDE
AND OTHERS
v.
MILLIKARJUN BHAVANAPPATIRUMALE
(S. R. DAS, C.J., M. HIDAYATULLAH and
K. c. DAS GUPTA, JJ.)
Writ of certiorari-Error apparent on the face of the recordT ermination of t<nancy--Question of necessity of notice to ltsseeRevenue Tribunal's decision reversed by High Court-LegalityConstitution of India, Art. 227.
The respondent made an application to the Revenue Court
for delivery of possession from his tenant, the appellant, on the
footing that the latter failed to pay the rent for three consecutive
years and so was entitled to get pos;ession from him as per the
terms of the lease. The appellant pleaded inter alia that the
respondent was not entitled to an order for possession 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 Revenue Court made an order in favour of the
respondent but, on appeal, the Collector set aside the order. The
Collector's order was confirmed by the Bombay Revenue Tribunal
which took the view that the Bombay Tenancy and Agricultural
Lands Act, 1948, was applicable to the lands in question but that .
the respondent must fail because he had failed to terminate the
tenancy by notice before taking proceedings for ejectment. The
respondent then applied to the High Court of Bombay under
Art. 227 of the Constitution of India, praying that it might
eicercise its power of superintendence over the Bombay Revenue
Tribunal and set aside its order. The High Court was of the
opinion that the Tribunal had committed an error which was
apparent on the face ol the rec0rd in holding that an order of
possession could no~ be made unless a notice terminating the
tenancy had been given before the institution of proceedings and,
accordingly, it quashed the order of the Tribunal and restored
that of the Revenue Court. The question was whether there was
an error apparent on the face of the judgment of the Bombay
Revenue Tribunal which the High Court could quash by issuing
a writ of certiorari.
In order to decide whether it was necessary
for the landlord to give notice to the lessee of his intention to
determine the lease, the relevant provisions of the Bombay
Tenancy and Agricultural Act, 1948, and the Transfer of Property,
1882, had to be considered and the rival contentions of the
parties showed that the point was far from being self evident
and could be established only by lengthy and complicated
arguments.
S.O.R.
SUPREME COURT REPORTS
891
Held, that the High Court was wrong in thinking th.at the
alleged error in the judgment of the Bombay Revenue Tribunal
was one apparent on the face of the record so as to be capable of
being corrected by a writ of certiorari.
An error which has to be established by a long drawn porcess
of reasoning on points where there may conceivably be two
opinions cannot be said to be an error apparent on the face of the
record.
Hari Vishnu K·1math v. Syed Ahmed Ishaque, [1955] I S.C.R.
no4, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
189of1955.
Appeal by special leave from the judgment and
order dated August 26, 1952, of the Bombay High
Court, in Civil Application No. 319 of 1952.
Purshottam Tricumdas and N aunit Lal, for the
appellants.
A. V. Viswanatha Sastri and M. S. K. Sastri, for the
respondent.
1959. September 25. The Judgment of the Court
was delivered by
I959
Satyanarayan
Laxminarayan
Hegde
v.
Millikarjun
Bhavanappa
Tirumale
DAS GUPTA J.--"-On August 22, 1949, the respondent
Das Gupta J
made an application in the Revenue Court of the
Mamlatdar of Sirsi, District Kanara, praying for delivery of possession of property which the appellant was
on tha.t date possessing as the tenant under him, on
the basis of a "Mulegeni" deed executed by the respondent's predecessor-in-interest in favour of the
appellant's predecessor-in-interest. One of the terms
of the lease was that if rent for three consecutive years
fell in arrears the Mulegeni right will .be void and the
lessee should hand ov~r possession of the property to
the lessor. In .the application made in the Mamlatdar's
Court the respondunt based his claim for possession on
this express condition in the lease as also on an alleged
termination by him of the tenancy. The Bombay
Tenancy and Agricultural Lands Act, 1948 (Bombay
Act No. LXVII of 1948), hereinafter referred to as the
Bombay Tenancy Act, which it is not disputed applied
to this tenancy contained provision for termination of
tenancy in its s. 14.
1959
Satyanarayan
La~minarayan
Hegde
v.
Milliknrjun
Bhavanappa
Tirumale
Das Gupta ].
892
SUPREME COURT REPORTS [1960(1))
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 posses~ion
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
subjec~ to the
condition that the tenancy of the sub-tenants would
not be disturbed.
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.
Against this order the landlord (plaintiff-respondent)
appealed to the Bombay Revenue Tribunal. Before
that Tribunal the question of the Mamlatdar's jurisdiction does not appear to have been raised. The Tribunal
held that the Bombay Tenancy Act was applicable to
lands held on Mulegeni tenure but the landlord must
fail because he had failed to terminate the tenancy by
notice before instituting the action for ejectment.
Accordingly, he rej~cted the application for possession.
The landlord (plaintiff-respondent) then made an
application to the High Court of Bombay and prayed
that it may be pleased "to exercise its power of
superintendence over the Bombay Revenue Tribnnal
under Art. 227 of the Constitution of India, by calling
for the record and proceedings in the case, and on
perusal thereof set aside the order of the Tribunal and
the Collector and restore the. order of the Mamlatdar,
by issuing the writ of certiorari or any other suitable
writ." The High Court was of opinion that the Tribunal had committed an errnr which was apparent on
the face of the record in holding that an order of
possession could not be made unless a notice terminating the tenancy had been given before the institution
S.C.R.
SUPREME COURT REPORTS
893
of proceedings. In that view the Court issued a writ
of certiorari, quashed the order of the Tribunal and
restored the order of the Mamlatdar.
The character and scope of writs of certiorari have
been dealt with by this Court in some detail in its
decision H ari V i.shnu Kamath v. Syed Ahmed I shaque (1 ).
After referring to certain earlier decisions of this Court
cited therein this Court observed at p. 1121 :-
"On these authorities, the following propositions
may be taken as established: (1) Certiorari will be
issued for correcting errors of jurisdiction, as and
when an inferior Court or Tribunal acts without
jurisdiction or in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the Court or
Tribunal acts illegally in the exercise Of its undoubted jurisdiction, as when it decides without giving an
opportunity to the parties to be heard, or violates ·
the principles of natural justice. (3) The Court
issuing a writ of certiorari acts in exercise of a.
supervisory and not appellate jurisdiction. One
consequence of this is that the Court will not review
findings .of fact reached by the inferior Court or
Tribunal, even if they be erroneous. This is on the
principle that a Court which has jurisdiction over a.
subject-matter has jurisdiction to decide wrong as
well as right, and when the Legislature 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."
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 decit-iion 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:-
11' [1955] r S.C.R. rro4.
[ 13
1959
Satyanaraym•
LaxminarayaH
Hegde
v.
Millikarjun
B havanappa
Tirumal1
Da• Gupta].
1959
Sal)'anarayan
Ltumin!1rayan
Hegde
v.
Millikarjun
Bhavanappa
Tinonale
Das Gupta J.
894
SUPREME COURT REPORTS [1960(1)]
"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? Learned
Counsel on either side were unable to suggest any
clear-cut rule by which the boundary between the
two classes of errors could be demarcated. Mr.
Pathak for the first respondent contended on the
strength of certain observations of Chagla, C.J., in
Batuk K. Vyas v. Surat Municipality('), that no
error could be said to be- apparent on the face of the
record if it was not self-evident, and if it required
an examination or argument to establish it. This
test might afford a satisfactory basis for decision in
the majority of cases. But there must be cases in
which even this test might break down, because
judicial opinions also differ, and an error that might
be considered by one Judge as self-evident might
not be so considered by another. The fact is that
what is an error apparent on the face of the record
cannot be defined precisely or exhaustively, there
being an element of indefiniteness inherent in its
very nature, and it Prnst be left to be determined
judicially on the facts of each case."
The main question that arises for our consideration
in this appeal by special leave granted by this Court
is whether there is any error apparent on the face of
the record so as to enable the superior court to call
for the records and quash the order by a writ of
certiorari or whether the error, if any, was "a mere
error not so apparent on the face of the record'',
whiuh can only be corrected by an appeal if an appeal
lies at all.
As already stated the principal contention of the
defendant-appellant was that the landlord, the plaintiff-respondent had no right to an order of possession
(I) A.J.R. 1953 Bom. 133.
S.O.R.
SUPREME COURT REPORTS
895
inasmuch as, he had not terminated the tenancy by
giving a notice to the defendant-appellant. The Bombay Revenue Tribunal accepted this contention as
correct. The question is whether there was an error
apparent on the face of the judgment of the Bombay
Revenue Tribunal which the High Court could quash
by issuing a writ of certiorari.
It is necessary to
consider first the words of s. 14 of the Bombay
Tenancy Act which is said to require a notice before a
tenancy can be terminated. The section is in these
words:
"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 15 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 qetermination 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.
I959
Satyanarayan
La:rminarayan
Hegde
v.
Millikarjun
Bhavanappa
Tfrumale
Das Gupta].
I959
Satvanarayan
Laxminarayan
Hegde
v.
Millikarjun
Bhavanappa
Tirumale
Das Gupta J.
896
SUPREME COURT REPORTS [1960(1)]
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 at the expiration of such period,
unless the landlord bas by the acceptance of rent or
by any act or conduct of his allowed the tenant to
hold over within the meaning of sec. 116 of the
Transfer of Property Act, 1882.
3. Notwithstanding anything contained in subsection (1), the tenancy of any land held by a tenant
who is a minor or who is subject to physical or mental
disability shall not be liable to be determined under
the said sub-section only on the ground that such
land has been sub-let on behalf of the said tenant."
It has to 'be noticed that this section does not in
express -terms provide for the act of termination of
tenancy to be effected by notice given by the landlord.
Section 29, sub-s. 2, which provides that no landlord
shall obtain possession of any land or dwelling house
held by a tenant except under an order of the Mamlatdar, also does not provide that any notice has to be
given before an application for possession is to be
made.
On be-half of the appellant it is contended however
that the very words used in s. 14 compel the conclusion that there is no effective termination without
some kind of overt act done by the landlord indicating
that he intends to terminate the tenancy. This, it is
said, is the result of the words used by the Legislature
that a tenancy "shall not be terminated " in marked
distinction to the words as regards termination of
tenancies under s. Ill of the Transfer of Property Act.
That section of the Transfer of Property Act lays
down that the lease of immovable properties " determines" in a number of different ways. We find that
with foll knowledge of the use of the word " determines" in s. 111 of the Transfer of Property Act the
Bombay Legislature instead of saying that the tenancy
".determines " or "shall not terminate" said that the
tenancy " shall not be terminated ". It is suggested
that this different language was used deliberately and
not by accident. Again, in sub-s. 2 of s. 14 when the
question of termination of tenancy by eftlux of time
S.C.R.
SUPREME COURT REPORTS
897
in certain cases is provided for, the legislature, it is
pointed out, says that the tenancy shall terminate at
the expiration of such period. rhe argument is that
the only reason for this difference in language can
be that the Legislature intended that while in the cases
contemplated under sub-s. 2 of s. 14, the termination
will t&ke effect automatically without any positive
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.
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 ins. 14(l)(b), viz., that a tenant has done any
a.ct 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 bys. 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
a.ct which is destructive or permanently injurious to
the land is to give the tenant a chance of remedying
the injury committed and has ·rrothing to do with the
fa.ct of termination, and that the Legislature might, if
it had thought fit, also have enacted provision for such
a chance to tenants who had not paid their rents to
pay up their rents and might in that case have provided for a notice to be given by the landlord recording
the fact of non-payment. Can the omission of the
Legislature to provide for such opportunity to a
defaulting tenant be any ground for thinking r·hat the
termination itself is effective without notice ? Does
the fact that s. 24 says that the landlord must serve
on the tenant a notice in writing specifying the ,act of
destruction or injury complained of therefore weaken
in any way the infer~nce implicit in the use of the words
"shall not be terminated" that some communication
I959
Satyanarayan
La:rminarayan
Hegde
v.
Millika•jun
Bhauanappa
Z'irumale
DasGupta J.
-
r959
Satyanarayan
Laxminarayan
Hegde
v.
Millikarjun
Bhavanappa
Tirumale
Das Gupta ].
898
SUPREME COURT REPORTS [1960(1)]
of the landlord's exercising that option to terminate
must be communicated to the tenant before there is
an effective termination ?
On behalf of the plaintiff-respondent it is contended
that in any case this intention to exercise the option
to terminate is sufficiently expressed by the very fact
of application for possession having been made and
that it would be reasonable to hold that sufficient
notice to terminate was given by the very fact of the
application having been made. In this connection it
is necessary to take into consideration the words used
by the Legislature in s. 25 :-
Relief against termination of tenancy for nonpayment of rent.:-
" 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 15 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 :-
Provided that noth.ing in this section shall apply
to any tenant whose tenancy is terminated for nonpayment of rent if he has failed for .any three years
to pay rent within the period specified in s. 14."
Of course as the present case is one of failure by the
tenant for three years to pay rent within the period
specified in s. 14 the provision in the operative portion
of s. 25 will not, it is conceded, apply to this case but
the argument is that that circumstance is no reason why
we should 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 "wher<i any tenancy of any land held by any
tenant is terminated for non-payment of rent and the
....
S.C.R.
SUPREME COURT REPORTS
899
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.
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 arc 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 contains
12 sections-sections 105 to 116. Of theRe s. 111
contains provisions as regards the determination of
lease.
Cl. (g) of this section as it stood at the time
the Legislature enacted the Bombay Tenancy Act
including s. 3 was in these words :-
" (g) by forfeiture; that is to say, (1) in case the
lessee breaks an express condition which provides
that on breach thereof the lessor may re-enter; or
(2) in case the lessee renounces his character as such
by setting up a title in a third persoR or by claiming title in himself; or (3) the lessee is adjudicated
an insolvent and the lease provides that the lessor
may re-enter on the happening of such event ; and
in any of these cases the lessor or his transferee
gives notice in writing to the lessee of his intention
to determine the lease."
We have in this case a lease which says in express
terms that on non-payment of rent for three consecutive years the lessor may re-enter. There will,
therefore, be according to the provisions of Cl. (g) as
they stand now and as they stood in 1948 when the
Bombay Tenancy Act was enacted, a determination
1959
Satyanarayan
Laxmip.arayan
Hegde
v.
Millikarjun
Bhavanappa
Tirumate
Das Gupta J.
I959
Satyanarayan
Laxmina,.ayan
Hegde
v.
Millikarjun
Bhavanappa
Tirumal1J
Das Gupta j.
900
. SUPREME COURT REPORTS [1960(1)]
of the lease provided that the lessor has given notice
in writing to the lessee of his intention to determine
the lease. If Cl. (g) as it stood at the time of the
enactment of the Bombay Tenancy Act and as it
stands now applies to the tenancy in the present
litigation there is no escape from the conclusion that
there has been no determination of the tenancy under
the provisions of s. 3 of the Bombay Tenancy Act.
It has to be noticed, however, that the requirement
of a notice in writing being given by the lessor to
the lessee of the lessor's intention to determine the
lease became a part of Cl. (g) only on the amendment
of the Transfer of Property Act by Act 20 of 1929. By
s. 57 of this Amending Act the words "gives notice
in writing to the lessee of" was substituted for the
words "does some act showing''.
Section 63 of the
Amending Act provided inter alia that nothing in s. 57
of the Amending Act shall be deemed in any way to
affect the terms and incidents of any transfer of
property made or effected before the first day of April,
1930. A question has been raised that s. 57 of the
Amending Act does not affect the present tenancy the
lease having been given long before 1930 and the provisions of s. 111 (g) of the Transfer of Property Act
which will apply to the tenancy in the present litigation are of cl. (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 l, 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 pro vi ;o to s. 111 (g) as w 311 as the other sections mentioned ins. 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 Born bay Legislature spoke of the provisions
..
S.C.R.
SUPREME COURT REPORTS
901
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 proviso added?.
Is it
not proper to bear in mind in this connection that
the Bombay Tenancy Act was intended to benefit the
peasants and to improve the cultivation of Jands ?
In interpreting provisions of such beneficial legislation the Courts always lean in favour of that interpretation which will further that beneficial purpose of that
legislation. Is this not an arlditional ground for thinking that in adopting s. 3 the provisions of Chapter V of
the Transfer of Property Act, 1882, the Legislature
had the intention of applying these provisions to all
tenancies to which the Bombay Tenancy Act itself
apply irrespective of the fact whether these tenancies
were created before April 1, 1930, or not?
It was
contended therefore that even in so far as the claim
for possession was based on the ground of forfeiture
under the terms of the lease it was neces§lary for the
landlord to prove that he had given notice in writing
to the lessee of his intention to determine the lease.
The Bombay Revenue Tribunal took the view that
the plaintiff-respondent must fail in his application
for possession because he had failed to terminate the.
tenancy by notice before taking proceedings for ejectment.
Is the conclusion wrong and if so, is such
error apparent on the face of the record? If it is clear
that the error if any is not apparent on the face of
the record, it is not necessary for us to decide whether
the conclusion of the Bombay High Court on the
question of notice is correct or not. An error which
has to be established by a long drawn process of
reasoning on points where there may conceivably be
two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival ·contentions show the alleged error in
the present case is far from self evident and if it can be
established, it has to be established by lengthy and
complicated arguments. We do not think such an
error can be cured by a writ of certiorari according
to the rule governing the powers of the superior· court
U4
Satyanaraytn•
Laxminarayan
Hegde
v.
Millikarjun
Bhavanappa
Tiruma/1
Das Gupta].
r959
Satyanarayan
Laxminarayan
Hegde
v.
Millikarjun
Bhavanappa
Tirumale
DasGupla j.
r959
September ~o
902
SUPREME COURT REPORTS [1960(1)]
to issue such a. writ. In our opinion the High Court
was wrong in thinking that the alleged error in the
judgment of the Bombay Revenue Tribunal, viz., that
an order for possession should not be made unless a
previous notice had been given was an error apparent
on the face of the record so as to be capable of
being corrected by a writ of certiorari.
For the reasons stated above the judgment and
order of the High Court cannot be sustained. We,
therefore, allow the appeal and set aside the order of
the High Court issuing a writ of certiorari, quashing
the order of the Tribunal and restoring the order of
the Mamla.tdar, and we restore the order of the Bombay Revenue Tribunal.
The appellant will get his costs here and in the
High Court.
Appeal allowed.
KESHAV LAXMAN BORKAR
v.
DR. DEVRAO LAXMAN ANANDE
(S. R. DAs,C.J., and K. SUBBA RAO, J.)
Election Petition-Prayer for declaring election of the respon.
dent void and appellant duly elected-Valid votes and thrown away
votes--Representation of the People Act, r95r (43 of r95r), s. IOI,
rr. 57, 58.
The respondent who was at all material time holding a post
of profit under the. Government was elected to the Bombay
Legislative Assembly. The appellant filed an election petition
wherein he in addition to calling in question the election of the
respondent, asked for a declaration that he himself had been duly
elected. The Tribunal set aside the election of the respondent
and further declared the appellant to be duly elected for the
reason that the respondent's election having been set aside the
appellant alone was left in the field, and there was no other
candidates contesting the seat and the appellant was entitled to
be declared as duly elected under s. 101 of the Representation of
the People Act as having received the majority of the valid votes.
•
On appeal by the respondent the Bombay High Court while
confirming the order of the Tribunal, in so far as it set aside the
election of the respondent it also set aside the order of the