judgement:
Appeal No. 476 of 1961.
Appeal by special leave from judgment and order dated January 5, 1955, of the Punjab High Court of (Circuit Bench) at Delhi in Civil Misc.
No. 71/D of 1954.
N. C. Chatterjee, Hardayal Hardy and N. N. Keswani, for the appellant.
R. section Narula, for the respondents Nos. 1 to 3. 1962.
April 18.
The Judgment of the Court was delivered by AYYANGAR, J.
This is an appeal by special leave against a judgment of a learned Single Judge of the Punjab High Court holding that section 7 A of the Delhi and Ajmer Rent Control Act, 1947 (hereinafter called the Act), was unconstitutional as violative of the fundamental right guaranteed by article 14 of the Constitution.
The first respondent Ram Nath owns a building in Delhi of which, among others, the appellant company was a tenant.
The appellant moved the Rent Controller.
Delhi, under section 7A of the Act for fixation of the fair rent of the portion in its occupation.
These proceedings have had a chequered history which it is not material to set out, but suffice it to say that the Rent Controller, 244 Delhi, computed the fair rent for the entire building at Rs. 565/ p. m. and the fair rent payable by the appellant at Rs. 146/ per month.
It is necessary to mention that under the Act the Rent Controller would have bad jurisdiction to entertain 'the appellant 's application for the fixation of fair rent and for so fixing it only if the construction of the building in question was completed after March 24, 1947, but if the construction of the building was completed earlier the ordinary Civil Courts and not the Rent Controller would have had jurisdiction to determine the matter.
The date of the completion of the first respondent 's building therefore loomed large in the enquiry before the Rent Controller and that authority recorded a finding on this matter adverse to the first respondent in his order.
The landlord first respondent preferred an appeal against the order of the Rent Controller to the learned District Judge, Delhi, but the appeal was dismissed.
Thereafter he moved the High Court of the Punjab under article 227 of the Constitution challenging the correctness and propriety of every finding by the Rent Controller and of the District Judge on appeal.
This petition came on for hearing before a learned Single Judge of the High Court.
A Division Bench of the High Court had sometime previously held in another batch of cases (British Medical Stores vs Bhagirath Mal) (1) arising under the Act, that section 7A was unconstitutional and void and following this decision he allowed the petition of the first respondent and set aside the order of the Rent Controller as without jurisdiction, without considering the other matters which would arise if the sect ion was valid and the Rent Controller had jurisdiction.
From this decision of the learned Single Judge, the appellant preferred an appeal under the Letters Patent to a Division Bench.
(1) [1955] 1.
L. R. 8 Punjab, 639.
245 Mean while the judgement in British Medical Stores vs Bhagirath Mat (1) was brought tip by way of appeal to this Court, and as the appeal was getting ready to be heard, the appellants applied for and obtained special leave to appeal to this Court even during the pendency in the High Court, of the appeal by it under the Letters Patent.
The Letters Patent appeal was thereafter withdrawn by the appellant.
The appeal in the British Medical Stores case (1) was heard by this Court and the same was allowed by a judgment dated August 2, 1961, and this Court held reversing the judgment of the Punjab High Court that section 7 A of the Act was valid It would thus be seen that the only point which the learned Judge considered and on which the revision petition of the landlord first respondent was allowed no longer subsists and hence the appellant is entitled to have the appeal allowed.
As the learned Single Judge did not consider the other objections raised by the first respondent to the order of the Controller fixing the standard fair rent payable by the appellant, the appeal has to be remanded to the High Court for being dealt with according to law.
Before concluding it is necessary to advert to a preliminary objection to the hearing of the appeal raised by learned Counsel for the landlord respondent.
His submission was that the special leave which was granted by this Court exparte should be revoked as having been improperly obtained.
The facts in relation thereto were these.
The judgment of the learned Single Judge to appeal from which the leave was granted was dated January 5, 1955, and the application to this Court seeking leave was (1) Punjab 639.
(2) See Roshan Lal Mehrau .Ishwar Dass [1962] 2 S.C.R.947.
246 made on January 5, 1959, i.e., after a lapse of four years.
It is obvious that it was an application which had been filed far beyond the period of limitation prescribed by the rules of this Court.
Learned Counsel for the respondent urged that there were no sufficient grounds for condoning that long.
delay and that we should therefore revoke the leave.
We are not disposed to accede to this request for revoking the leave in the peculiar circumstances of this case.
Learned Counsel invited our attention to a few decisions in which leave granted exparte was revoked at the stage of the hearing of the appeal on an objection raised by the respondent; but we do not consider that the facts of the present appeal bear any analogy to those in the decisions cited.
In the first place, there was no by passing the High Court, because the appellant had filed an appeal under the Letters Patent and it was during the pendency of that appeal that he moved this Court for leave.
Next, there was no suppression of any fact which would have relevance to the granting or withholding of the leave, and the exact position as it stood at the time the petition was tiled was set out in it.
Thirdly, it is obvious that if the delay had not been condoned and leave refused when application therefor was made in January 1959, the appellant would have prosecuted his Letters Patent appeal and he could obviously have come up here if the decision went against him.
In fact, the grant of special leave in the circumstances of this case, merely served to shorten the proceedings, and this Court acceded to the petition for leave obviously because the appeal in this Court from judgments in the case of the British Medical Stores etc.
(1) were getting ready for bearing and there was some advantage if the appellant was in a position, to intervene in those other appeals.
In (1) Punjab 639.
247 view of these considerations we are of the opinion that this is not a case in which the leave should be revoked.
Nevertheless, we consider that we should add that, except in very rare cases, if not invariably, it should be proper that this Court should adopt as a settled rule that the delay in making an application for special leave should not be condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant 'of the leave.
Such a course besides being just, would be preferable to having to decide applications for revoking leave on the ground that the delay in making the, same was improperly condoned years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing other remedies if leave had been refused earlier.
We would suggest that the rules of the Court should be amended suitably to achieve ' this purpose.
The result is that the appeal is allowed and the order of the learned Single Judge accepting the revision petition under article 227 preferred by the landlord first respondent is set aside.
The case is remanded to the High Court for considering the ' petition of the respondent in accordance with law and on the footing that section 7 A of the Rent Control Act is a valid piece of legislation.
It is admitted that the point as regards the constitutionality of section 7 A of the Rent Control Act was not raised by the landlord respondent, and in the circumstances of the case we direct the parties to bear their own costs in this Court.
The costs in the High Court will be as directed by that Court.
Appealed allowed.
To be reprinted.

summary:
Against the judgment of the Single judge of the Punjab High Court dated January 5, 1953, in which he followed the decision of a Division Bench holding that section 7A of the Delhi and Ajmer Rent Control Act, 1947, was unconstitutional and void, the appellants preferred an appeal under the Letters Patent.
Meanwhile the judgment or the Division Bench was brought up by way of appeal to the Supreme Court, and as the appeal was getting ready to be heard, the appellants made an application on January 5, 1959, for special leave to appeal to the Supreme Court against the judgment of the Single judge.
No notice was given to the respondent to the application, and special leave was granted ex parte.
The Letters Patents appeal was thereafter withdrawn by the appellants.
When the appeal came on for hearing in due course, the respondent raised an objection to the hearing of the appeal on the grounds that the application for special leave was barred by limitation, that there were no sufficient reasons for condoning the long.
delay of four years, and that the special leave granted ex parte should be revoked.
243 Held, that, in the peculiar circumstances of the case, leave should not be revoked.
Expect in very rare cases, if not invariable, the Supreme Court should adopt as a settle rule that the delay in making an application for special leave should not condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave.
Desirability of the Rules of the Supreme Court being amended suitably pointed out.


judgement:
Appeal No. 154 of 1952.
Appeal from the Judgment and Decree dated the 23rd June, 1949, of the High 131 1010 Court of Judicature at Bombay (chagla C. J. and Gajendragadkar J.) in Second Appeal No. 557 of 1945 against the Judgment and Decree dated the 19th March, 1945, of the Court of Small Causes, Poona, in Civil Appeal No. 175 of 1943, arising from the Decree dated the 31st March, 1943, of the Court of the Extra Joint Sub Judge of Poona in Suit No. 858 of 1941.
C. K. Daphtary, Solicitor General for India (J.B. Dadachanji, with him) for the appellant.
V. M. Tarkunde for the respondents.
February 27.
The judgment of the Court was delivered by MAHAJAN J.
This is an appeal by defendant No. I from the decree of the High Court of Judicature at Bombay in Second Appeal No. 557 of 1945, whereby the High Court confirmed the decree of the lower courts granting possession of land to the respondents on the forfeiture of a lease.
The appeal is confined to survey No. 86/2 at Mundhava in Poona district.
The principal question arising for decision in the ap.
peal is whether notice as contemplated by section III (g) of the is necessary for the determination of a lease for non payment of rent even where such lease was executed before the coming into force of the .
The only other question that falls for determination is whether the High Court should have interfered with the discretion of the lower courts in refusing relief against forfeiture in the circumstances of this case.
The present respondents are the daughter and grand sons of the original plaintiff Vinayakbhat.
His adoptive mother was Ramabai.
She owned two inam lands at Mundhava which were then numbered Pratibhandi Nos. 71 and 72.
Present survey Nos.
86/1 and 86/2 together correspond to old Pratibhandi No. 71.
On 1st July, 1863, Ramabai, while she was in financial difficulties, passed a permanent lease of both these numbers to one Ladha Ibrahim Sheth.
The lessee paid a premium of Rs. 999 for the lease, and also agreed to pay 1011 a yearly rent of Rs. 80 to Ramabai during her lifetime and after her death a yearly amount equal to the assessment of the two lands to the heirs of Ramabai.
The lease provided that in default of payment of rent the tenant 's rights would come to an end.
On 18th August, 1870, Ladha Ibrahim sold his tenancy rights to one Girdhari Balaram Lodhi for Rs. 7,999.
The sale deed provided that in default of payment of rent to Ramabai or her heirs, the purchaser would have no rights whatsoever left over the property.
On the same day the purchaser passed a rent note in favour of Ramabai.
The rent note provided for the payment of the agreed rent in the month of Pousb every year, and stated that in case of default the tenant or his heirs would have no right over the land.
Defendant No. 1 and the other defendants are the grandsons of Seth Girdhari Balaram.
In spite of the nullity clause in the lease it appears that the lessee has been more or less a habitual defaulter in the payment of rent.
In the year 1913, rent for six years was in arrears.
Vinayakbhat filed Suit No. 99 of 1913 in the court of the II Class Sub Judge, Poona, against the present defendants for possession of the demised premises on the ground of forfeiture.
A number of defences were raised by them.
Inter alia, it was pleaded that as no notice had been given to them the forfeiture was not enforceable.
These contentions were negatived but the court granted relief against forfeiture.
Defendant No. 1 was a minor at that time and became a major in or about 1925.
In the year 1928 again rent for two years was in arrears.
Vinayakbhat filed Civil Suit No. 258 of 1928 against the present defendants for possession on the ground of forfeiture.
The plaintiff subsequently waived the forfeiture by accepting three years ' rent which by then had fallen in arrears and costs of the suit.
In the year 1931 rent for three years again fell into arrears.
The amount was then sent by money order and the landlord accepted it.
In the year 1934 again rent for three years remained unpaid.
At that time proceedings were started by Government for the acquisition of the old survey No. 72.
1012 The landlord claimed that he was entitled to the whole compensation money as the tenant 's rights had ceased by forfeiture for non payment of rent.
Defendant No. 1 through his pleader sent a notice to Vinayakbhat to come and take the arrears of rent. 'He agreed and accepted the arrears of rent and the forfeiture was again waived.
As a result of this the defendants got Rs. 32,000 by way of compensation for the permanent tenancy rights in old survey No. 72, while Vinayakbhat got Rs. 1,400 for compensation for the acquisition of his rights as landlord in that land.
In 1938 rent for four years was again in arrears.
Vinayakbhat filed Civil Suit No. 982 of 1938 in the court of the I Class Sub Judge at Poona against all the present defendants for possession of survey Nos.
86/1 and 86/2 on the ground that the lease had determined by forfeiture for non payment of rent.
In that suit defendant No. 1 pleaded that there was no forfeiture because no rent was fixed in respect of the suit property and also because it was for the, plaintiff to recover rent and not for the defendants to go to the plaintiff and pay it.
These contentions were negatived.
It was held that forfeiture had occurred but relief against forfeiture was again granted.
On plaintiff 's appeal in this case, the learned District Judge refused to interfere with the discretion of the trial judge in granting relief against forfeiture but observed that the defendants having obtained relief against forfeiture thrice before should not expect to get it for a fourth time if they again make default in the payment of rent.
The default which has given rise to the present suit occurred on 28th January, 1941, and the plaintiff filed the suit out of which this appeal arises for possession on the ground of forfeiture and for the arrears of rent which remained unpaid.
It was alleged in the plaint that the rent due on 28th January, 1941, was not paid, though demanded.
Plaintiff asked for possession of survey Nos. 86/1 and 86/2 after removal of the structures thereon.
Defendant No. 1 pleaded that as a result of partition rights in survey No. 86/2 had fallen to 1013 his share, that according to the terms of the rent note it was for the plaintiff to approach the defendants and.
not for the defendants to go to the plaintiff and pay it, ' ' that as the plaintiff did not approach the defendants and no demand for rent was made, no forfeiture occurred, that defendant No. I did offer the rent to the plaintiff, but the plaintiff fraudulently refused to accept it, that the plaintiff ought to have sent a notice according to law if he wanted to enforce the right of forfeiture and that without prejudice to the above contentions he should be granted relief against forfeiture.
The trial court decreed the plaintiff 's suit and negatived the contentions raised by the defendants.
In awarding Possession of the entire property to the plaintiff the trial court imposed a condition that defendant No. I should continue to be in possession of the two structures in survey No. 86/2 till the end of March, 1950.
On the question whether a notice was necessary before the lease could be terminated, the trial court expressed the view that the provision in the rent note that on non payment of rent the rights of the tenant would come to an end was a clause of nullity and not merely a clause of forfeiture and that the lease was therefore determined under section 111 (b) and not under section III (g) of the and that no notice as required by section 111 (g) was necessary for terminating the lease in suit.
On the issue whether forfeiture should be relieved against, the trial court said that relief could have been given to the lessee against forfeiture under section 1 14 had it not been for the fact that the defendants had disentitled themselves to relief by contumacious conduct on their part, that even this paltry rent had never been paid in time during the last twenty years at any rate, and that after defendant No. I had attained majority and got the estate in his charge in 1922 23 he had uniformly defaulted in the payment of rent and that the defendants raised totally false defences and in every suit a false excuse was set up in an attempt to justify the arrears of rent.
1014 In pursuance of the trial court 's decree plaintiff took possession of all the suit lands in April, 1943, except one acre which he took possession on 13th September, 1943.
Defendant No. I remained in possession of the two structures on survey No. 86/2.
Against the decision of the trial judge defendant No. I alone filed an appeal to the District Judge of Poona.
The lower appellate court confirmed the decree of the trial court with two modifications.
Defendant No. I was allowed to remove the buildings on survey No. 86/2 and also the trees therein within three months.
On the issue whether a notice was necessary, the appellate court found that the lease came to an end not under section 111(b) but under section 111 (g) of the Transfer of Pro perty Act, but that no notice of forfeiture was necessary as the lease had been executed prior to the coming into force of the .
The appellate court saw no valid reason for interfering with the finding of the trial judge on the question concerning relief against forfeiture.
From this appellate decree defendant No. I filed a second appeal to the High Court of Judicature at Bombay.
The plaintiff filed cross objections in regard to the trees and costs.
The High Court dismissed the appeal and allowed the cross objections.
An application was made for leave to appeal to the Supreme Court and it was granted with reference to survey No.
The law with regard to the determination of a lease by forfeiture is contained is section III (g) of the .
Under that provision a lease is determined by forfeiture in case the lessee breaks an express condition which provides that on breach thereof the lessor may re enter, or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or the lessee is adjudicated an insolvent and the lease provides that the lessor may reenter on the happening of such event and a certain further act is done by the lessor as thereinafter mentioned.
Prior to its amendment by Act XX of 1929, this sub section further provided 1015 "And in any of these cases the lessor or his transferee does some act showing his intention to determine the lease.
" By Act XX of 1929, this subsection was amended and the amended sub section now reads: "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.
" Section 111 (g) in 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 old section an overt act evidencing the requisite intention was essential.
As the law stands today under the Act, notice in writing by the landlord is a condition precedent to a forfeiture and the right of re entry.
Section 63 of Act XX of 1929, restricts the operation of this amendment to transfers of property made after 1st April, 1930.
The lease in this case was executed before the came into force in 1882.
The amendment therefore made in this sub section by Act XX of 1929 not being retrospective, cannot touch the present lease and it is also excluded from the reach of the by the provisions of section 2.
The position was not seriously disputed in the High Court or before us that the statutory provisions of section 111(g) as such cannot be made to govern the present lease which was executed in the year 1870.
It was however strongly argued that the amendment made in 1929 to section 111(g) of the Act embodies a principle of justice, equity and good conscience and notwithstanding section 2 of the Act, that principle was applicable in this case and there can be no forfeiture unless notice in writing to the lessee of his intention to determine the lease by the lessor bad been given.
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 1016 Property Act are not made applicable to these transactions.
It follows therefore that the provisions of the Act which are but a statutory recognition of the rules of justice, equity 'and good conscience also govern those transfers.
If, therefore, we are satisfied that the particular principle to which the legislature has now given effect by the amendment to section 111 (g) did in fact represent a principle of justice, equity and good conscience, undoubtedly the case will have to be decided in accordance with the rule laid down in the section, although in express terms it has not been made applicable to leases executed prior to 1929 or even prior to the coming into force.
The main point for consideration thus is whether the particular provision introduced in sub section (g) of section 111 of the in 1929 is but a statutory recognition of a principle of justice, equity and good conscience, or whether it is merely a procedural and technical rule introduced in the section by the legislature and is not based on any well established principles of equity.
The High Court held, and we think rightly, that this provision in sub section (g) of section III in regard to notice was not based upon any principle of justice, equity and good conscience.
In the first instance it may be observed that it is erroneous to suppose that every provision in the and every amendment effected is necessarily based on principles of justice, equity and good conscience.
It has to be seen in every case whether the particular provisions of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule.
Now, so far as section 111 (g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the fact that the formality is merely statutory and it cannot trace its origin to any rule of equity.
Equity does not concern itself with mere forms or modes of procedure.
If the purpose of the rule as to notice is to indicate the intention of the lessor to 1017 determine the lease and to avail himself of the tenant 's breach of covenant it could as effectively be achieved by an oral intimation as by a written one without in any way disturbing the mind of a chancery judge.
The requirement as to written notice provided in the section therefore cannot be said to be based on any general rule of equity.
That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1st April, 1930.
Those leases are still governed by the unamended sub section (g) of section 1 1 1.
All that was required by that sub section was that the lessor was to show his intention to determine the lease by some act indicating that intention.
The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in sub section (g) as it stood before 1929, and to leases executed after 1st April, 1930, the principle of equity is the one stated in the sub section as it now stands.
Question may also be posed, whether according to English law a notice is a necessary requisite to complete a forfeiture.
The English law on the subject is stated in Foa 's General Law of Landlord and Tenant (7th edition) at page 316 in these terms : " In no case can the lessee take advantage of the proviso for re entry in order to avoid the lease, even where it is in the form (not that the lessor may reenter, but) that the term shall cease, or that the lease shall be void for all purposes, or 'absolutely forfeited '; for expressions of this kind only mean that the tenancy shall determine at the option of the lessor. .
This has been usually expressed by saying that the lease is voidable and not void; but the true principle appears to be that the lease does become void to all intents and purposes, though this is subject to the condition that the party who is seeking to set up its invalidity 132 1018 is not himself in default, for otherwise he would be taking advantage of his own wrong.
It follows that where the proviso makes the lease void, the landlord must, in order to take advantage of it, do some unequivocal act notified to the lessee, indicating his intention to avail himself of the option given to him.
The service upon the lessee in possession of a writ in ejectment is sufficient".
The Law of Property Act, 1925, by section 146 has consolidated the law in England on this subject.
The provision with regard to the giving of notice before a right of re entry accrues to the landlord is expressly excluded by sub section (11) in cases of re entry on forfeiture for non payment of rent.
In England it is not necessary in case of non payment of rent for a landlord to give notice before a forfeiture results.
It cannot, therefore, be said that what has been enacted in sub section (g) of section II 1 is a matter which even today in English law is considered as a matter of justice, equity and good conscience.
In English law the bringing of an action which corresponds to the institution of a suit in India is itself an act which is definitely regarded as evidencing an intention on the part of the lessor to determine a lease with regard to which there has been a breach of covenant entitling the lessor to re enter : vide Toleman vs Portbury and Prakashchandra Das vs Rajendranath Basu(2).
In India there is a substantial body of judicial authority for the proposition that in respect of leases made before the forfeiture is incurred when there is a disclaimer of title or there is non payment of rent.
Any subsequent act of the landlord electing to take advantage of a forfeiture is not a condition precedent to the right of action for ejectment.
The bringing by a landlord of a suit for ejectment is simply a mode of manifesting his election.
The principle of these cases rests upon the ground that the forfeiture is complete when the breach of the condition or the denial of title occurs.
But as it is left to the lessor 's option to take advantage of it or not, the (1) L.R. 6 Q.B. 245.(2) (1931)58 cal.
1019 election is not a condition precedent to the right of action and the institution of the action is a sufficient manifestation of the election.
The same principle is applied for actions for relief on the ground of fraud.
[vide Padmabhaya vs Ranga(1) ; Korapalu vs Narayana(2)].
In Rama Aiyangar vs Guruswami Chetty(3),it was saidthat as the lease was not governed by the , the institution of the suit was a sufficient determination of the lease and no other previous act determining the same such as a notice to quit was necessary for maintaining the action.
The same view was expressed in Venkatachari vs Rangaswami Aiyar(4).
In Venkatarama Aiyar vs Ponnuswami Padayachi(5), it was observed that the forfeiture will not be produced merely by the unilateral act of ceasing to comply with the conditions upon which the property is held, but it must involve also some expression of intention to enforce the forfeiture on the part of the lessor.
In other words, the lessee cannot by his unilateral act terminate the lease, and cannot take advantage of his own wrong.
That is an intelligible principle and is based on a maxim of equity.
But the defaulting lessee cannot claim the benefit of a notice in writing to complete the forfeiture he has incurred.
The lessor has to simply express an intention that he is going to avail of the forfeiture and that can be done by the filing of a suit, as in English law, in all cases not governed by the .
Again in Ramakrishna Mallaya vs Baburaya (6), it was said that in an ejectment suit based on leases executed prior to the , no act on the part of the landlord showing that he elected to take advantage of the forfeiture for non payment of rent was necessary.
The contrary view expressed in Nourang Singh vs Janardan Kishor(7), that the institution of a suit for ejectment could not be regarded as a requisite act to show the intention of a (1) Mad. 161.
(2) Mad.
(3) (4) (1919) 36 M.L.J. 532.
(5) A.I.R. 1935 Mad.
(6) (7) Cal.
469, 1020 landlord to determine a lease within the meaning of section 111 (g), was dissented from in Prakashchandra Das vs Rajendranath Basu(1); and it was said that there is no special reason why the lessor 's election must be made at some time prior to the institution of a suit and that it was difficult to find a raison d 'etr for the view that the cause of action has not completely accrued if the election is made at the moment when the suit is instituted, i.e., the moment the plaint is presented.
The cause of action for the suit can arise simultaneously with the presentation of a plaint.
In our opinion the provision as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on any principle of justice, equity or good conscience and cannot govern leases made prior to the coming into force of the , or to leases executed prior to 1st April, 1930.
The rights and obligations under those leases have to be determined according to the rules of law prevailing at the time and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the lease unless the lessor gives an indication by some unequivocal expression of intention on his part of taking advantage of the breach.
On no principle of equity is a tenant entitled to a notice in writing telling him that the lease has been determined.
The High Court was therefore right in the view that it took of the matter and there are no valid reasons for taking a contrary view.
Considerable reliance was placed by Mr. Daphtary on the decision of Chandrasekhara Aiyar J. sitting singly in the case of Umar Pulavar vs Dawood Rowther(2), wherein the learned Judge said that section 111 (g) as amended in 1929 embodied a principle of justice, equity and good conscience and must be held to govern even agricultural leases and where there was a forfeiture by denial of the landlord 's title, a notice in writing determining the lease was necessary.
it was there observed that the principle so embodied (1) Cal.
(2) A.I.R. 1947 Mad.
1021 in the sub section as a result of the amendment becomes, so to say, a principle of justice, equity and.
good conscience.
The learned Judge for this view placed reliance on the decision in Krishna Shetti vs Gilbert Pinto( '), in which it was said that the was framed.
by eminent English lawyers to reproduce the rules of English law, in so far as they are of general.
application and rest on principle as well as authority and its provisions are binding on us as rules of justice, equity and good conscience.
With respect, we are constrained to observe that this is too broad a statement to make.
It seems that the attention of the learned judges was not drawn to the fact that the provision as to notice for determining a lease for nonpayment of rent was not a part of the English law.
It also does not seem to have been fully appreciated that the rule enunciated in sub section (g) of section 111 prior to its amendment in 1929 and which still governs leases executed before 1st April, 1930, OD the reasoning of the decision would also be a rule of justice, equity and good conscience and according to it the institution of a suit for ejectment would be sufficient indication on the part of the landlord for determination of the lease and a notice in writing as required by the amended section would not be a prerequisite for institution of such a suit.
In our judg ment, this case was wrongly decided and we are unable to support it.
As pointed out by Napier J. in Krishna Shetti vs Gilbert Pinto (1), the courts should be very careful in applying statutory provisions and the assistance of the as a guide on matters which have been excluded from the purview of the Act by express words should not be invoked, unless the provisions of the Act embody principles of general application.
Mr. Daplitary also placed reliance on certain observations contained in the Full Bench decision Brahmayya vs Sundaramma (1).
There it was said that although section 106 of the does not (1) Mad.
(2) A.I.R. 1948 Mad.
1022 apply to leases for agricultural purpose by virtue of section 117 of the Act, nevertheless the rules in section 106 and in the other sections (sections 105 to 11 6) in Chapter V of the Act are founded upon reason and equity and they are the principles or English law and should be adopted as the statement of the law in India applicable also to agricultural leases.
In our opinion, the above statement is again formulated in too wide a language.
Section 105 gives a statutory definition of the word "lease".
It enunciates no principle of equity.
The relation of lessor and lessee is one of contract and in Bacon 's Abridgement a lease is defined as a contract between the lessor and the lessee for the possession and profits of land on the one side and recompense by rent or other consideration on the other.
The statute has given a more comprehensive definition of the term.
Section 107 makes registration of a lease compulsory.
This section again does not concern itself with any princi ple of justice or equity.
Section 108 (j) enacts that the lessee may transfer absolutely by way of mortgage or sublease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it.
The law in India and England on this subject is not the same and it cannot be said that this sub section enacts or enunciates any general principle of equity.
Parts of sections 109, 1 10 and Ill contain mere rules of procedure or rules of a technical nature.
These certainly cannot be said to be based on any principles of equity.
In our judgment, therefore, the statement in this decision that sections 105 to 116 of the are founded upon principles of reason and equity cannot be accepted either as correct or precise.
Of course, to the extent that those sections of the Act give statutory recognition to principles of justice, equity and good conscience they are applicable also to cases not governed by the Act.
Reference was also made to the decision of the Bombay High Court in Tatya Savla Sudrik vs Yeshwanta Kondiba Mulay (1) where it was said that the (1) 1023 principle embodied in section 111 (g) of the that in the case of forfeiture by denial of landlord 's title a notice in writing determining them lease must be given is a principle of justice, equity and good conscience which must be held to govern even agricultural leases.
In that case it was contended that following upon forfeiture which had been incurred a suit was filed by the plaintiffs in eviction and nothing more needed to be done by the plaintiffs.
For this contention reliance was placed on two earlier decisions of the Bombay High Court, Venkaji Krishna Nadkarni vs Lakshman Devji Kandar (1) and Vidyavardhak Sang Co. vs Avvappa (2).
This contention was negatived in view of the decision of Chandrasekhara Aiyar J. above referred to, and also in view of a binding decision of a Division Bench of that court in Mahiboobkhan Muradkhan vs Ghanashyam Jamnaji(3).
The learned Chief Justice in the judgment under appeal has explained the distinction between the present case and that case and has not followed his own earlier decision in arriving at his conclusions here.
With respect we think that that decision did not state the law on the point correctly.
Under English law the institution of a suit for ejectment has always been considered an unequivocal act on the part of the landlord for taking advantage of the default of the tenant and for enforcing the forfeiture in case of non payment of rent, and even in other cases except where statutory provisions were made to the contrary.
Reference was also made to the observations of their Lordships of the Privy Council in Aditya Prasad vs Ramratan Lal (1).
Their Lordships dealing with the question whether a certain document created a charge upon a village observed that the appellant could not redeem it without paying both the mortgage debt and the amount subsequently raised and it was said that the provisions of the on the point were identical with the principles of justice, equity and good conscience.
The observation made in that case must be limited to that case and cannot be (1) Bom, 354 F.B. (2) (3) Unreported.
(4) (1930) 57 I.A. 173.
1024 held as applicable to all cases irrespective of the nature of the provisions involved.
Similar observations are contained in another decision of their Lordships of the Privy Council in Muhammad Raza vs Abbas Bandi Bibi (1), which concerned the provisions of section 10 of the which recognizes the validity of a partial restriction upon a power of disposition in the case of a transfer inter vivos.
It was held that there was no authority that a different principle applied in India before the Act was passed and that under English law a partial restriction was ' not repugnant even in the case of a testamentary gift.
Lastly, Mr. Daphtary drew our attention to the decision in Roberts vs Davey(2), which relates to a licence.
There it was observed that it was necessary for the licensor to have done some act showing his intention to determine the licence and until such act was shown, it continued in force.
Littledale J. in this case said that the instrument was "a mere licence to dig, and did not pass the land.
An actual entry, therefore, was unnecessary to avoid it; but by analogy to what is required to be done in order to determine a freehold lease which, by the terms of it, is to be void on the non performance of covenants, it seems to follow that, to put an end to this licence, the grantor should have given notice of his intention so to do".
The basis of the decision was that some act amounting to an exercise of the option had to be proved before the licence was determined.
This decision therefore does not in any way affect the decision of the High Court in this case.
On the question whether the tenant should have been given relief against forfeiture the High Court held that the matter was one of discretion and both the lower courts had exercised their discretion against the appellant and that being so, unless they were satisfied that the discretion was not judicially exercised or was exercised without proper materials they would not ordinarily interfere with it in second appeal.
It was said that the non payment in this case seems to have (1) (1932) 59 I.A. 236.
(2) ; 1025 become chronic and that this was not a case for the exercise of equitable jurisdiction.
Mr. Daphtary contended that the High Court failed to appreciate the rule applicable for the exercise of the discretion in such cases and that the rule is that if at the time relief is asked for the position has been altered so that relief cannot be given without causing injury to third parties relief will be refused, but if that position is not altered so that no injustice will be done there is no real discretion and the court should make the order and give the relief.
Reference was made to the decision of Page J. in Debendralal Khan vs F. M. A. Cohen (1), wherein it was said that the court normally would grant relief against forfeiture for non payment of rent under section 114 of the and that if the sun) required under the section was paid or tendered to the lessor at the hearing of the suit the court has no discretion.
in the matter and must grant relief to the tenant.
We do not think that the learned Judges intended to lay down any hard and fast rule.
Indeed the learned Judge proceeded to observe as follows: "In exercising the discretion with which it is invested under section 114 a court in India is not bound by the practice of a court of Chancery in England, and I am not disposed to limit the discretion that it possesses, Those who seek equity must do equity, and I do not think merely because a tenant complies with the conditions laid down in section 114 that he becomes entitled as of right to relief" In our opinion, in exercising the discretion, each case must be judged by itself, the delay, the conduct of the parties and the difficulties to which the landlord. has been put should be weighed against the tenant, This was the view taken by the Madras High Court in Appaya Shetty vs Mohammad Beari (2) , and the matter was discussed at some length.
We agree with the ratio of that decision.
It is a maxim of equity that a person (1) Cal. 485.
(2) Mad.
133 1026 who comes in equity must do equity and must come with clean hands and if the conduct of the tenant is such that it disentitles him to relief in equity, then the court 's hands are not tied to exercise it in his favour.
Reference in this connection may also be made to Ramakrishna Mallya vs Baburaya(1), and Ramabrahmam vs Rami Reddi (2).
The argument of Mr. Daphtary that there was no real discretion in the court and relief could not be refused except in cases where third party interests intervene is completely negatived by the decision of the House of Lords in Hyman vs Rose (3).
Relief was claimed in that case under the provisions of section 14(2) of the Conveyancing Act, 1881, against forfeiture for breaches of covenant in the lease.
The appellants offered as the terms on which relief should be granted to deposit a sum sufficient to ensure the restoration of the premises to their former condition at the end of the term and make full restitution.
It was argued that the matter was one of discretion and the court should lean to relieve a tenant against forfeiture and if full recompense can be made to the landlord the relief should be granted.
Lord Loreburn in delivering the opinion of the House observed as follows: "I desire in the first instance to point out that the discretion given by the section is very wide.
The court is to consider all the circumstances and the conduct of the parties.
Now it seems to me that when the Act is so express to provide a wide discretion, meaning, no doubt, to prevent one man from forfeiting what in fair dealing belongs to some one else, by taking advantage of a breach from which he is not commensurately and irreparably damaged, it is not advisable to lay down any rigid rules for guiding that discretion.
I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard (1) (2) A.I.R. 1928 Mad. 250.
(3) 1027 an application for relief.
But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded.
If it were otherwise the free discretion given by the statute would be fettered by limitations which have nowhere been enacted.
It is one thing to decide what is the true meaning of the language contained in an Act of Parliament.
It is quite a different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all.
It is not safe, I think, to say that the court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a free hand.
" With great respect we think that the observations cited above contain sound principles of law.
We are, therefore, unable to accede to the contention of Mr. Daphtary that though section 114 of the confers a discretion on the court, that discretion except in cases where third party interests intervene must always be exercised in favour of the tenant irrespective of the conduct of the tenant.
It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter.
For the best part of 25 years he has never paid rent without being sued in court.
Rent has been in arrears at times for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on false defences.
No rule of equity, justice or good conscience can be invoked in the case of a tenant of this description.
He cannot always be allowed to take advantage of his own wrong and to plead relief against forfeiture on every occasion, particularly when he was warned by the court of appeal on a previous occasion.
He had already had relief three times on equitable grounds and it is time that the court withheld its hands and ordered his ejectment.
In this situation the High Court was fully justified in finding that in second appeal it would not interfere with the 1028 discretion of the courts below in refusing to, grant relief against forfeiture.
The result therefore is that this appeal fails is dismissed with costs.
Appeal dismissed.
Agent for appellant: R.A. Govind.
Agent for respondents: Rajinder Narain.

dataset_name: IN-Abs

summary:
The provision as to notice in writing of the lessor 's intention to determine the lease, container in section 111(g) of the , as amended in 1929, is not based on any principle of justice, equity or good conscience and is not applicable to leases executed prior to 1st April, 1930.
Where a lease deed executed before the , came into force, provided that the lessee 's rights should come to an end on default of payment of rent, and, as rent was not duly paid, the lessor instituted a suit for ejectment of the lessee without giving him a notice in writing of his (the lessor 's) intention to determine the lease : Held, that the suit was maintainable.
Umar Pulavar vs Dawood Rowther (A.1,R. , Brahmayya vs Sundodaramma (A.I.R. , Tatya Savla Sudrik vs Yeshwanta Kondiba Mulay disapproved.
Toleman vs Portbury (L.R. 6 Q.B. 245), Prakash Chandra Das vs Rajendra Nath Basu (I.L.R. , Rama Aiyangar vs Guruswami Chetty , Venkatachari vs Rangaswami Aiyar (36 M.L.J. 532) and Krishna Shetti vs Gilbert Pinto (I.L.R. relied on.
Venkatarama Aiyar vs Ponnuswamy Padayachi (A.I.R. 1935 Mad. 918), Aditya Prasad vs Ram Ratanlal (57 I A. 173), Muhammad Raza vs Abbas Bandi Bibi (59 I.A. 236), Roberts vs Davey ; distinguished.


judgement:
Appeal No. 537 of 1960.
Appeal from the judgment and order dated December 23, 1959, of the Mysore High Court in Writ Petition No. 229 of 1955.
section section Shukla and E. Udayarathnam, for the appellant.
H. N. Sanyal, Additional Solicitor General of India, R. Gopalakrishnan and P. D. Menon, for the respondents Nos. 1 and 2.
R. Gopalakrishnan, for respondent No. 3 1962.
April 18.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal arises from a writ petition filed by the appellant, Raghutilaka Tirtha Sripadangalavaru Swamiji, in the Mysore High Court challenging the validity of section 6 (2) of the Mysore Tenancy Act, 1952 (XIII of 1952) hereafter called the Act, and the notification issued under the said section on March 31, 1952.
The appellant 's case as set out in his writ petition before the High Court was that the impugned section as well as the notification issued under it infringed his fundamental rights guaranteed under articles 14, 19 (1) (f), 26, 31 and 31A of the Constitution.
This contention has been rejected by the High Court and it has been hold that the section and the notification under challenge are valid and constitutional.
The appellant then applied for a certificate from the High Court, both under article 132 and article 133 of the Constitution.
The High Court granted him a certificate under article 133, but refused to certify the, case under article 132.
There 229 after the appellant applied to this Court for liberty to raise a question about the interpretation of the Constitution and permission has been accorded to the appellant accordingly.
That is how the present appeal has come to this Court.
The appellant owns 6 acres and 30 ghuntas of garden land in village Mulbagilu in Taluka Thirthahalli in the district of Shimoga.
Respondent No. 3, Ramappa, Gowda, is his tenant in respect of this land.
A registered lease deed was executed in favour of respondent No. 3 by the appellant on March 11, 1943; under this document respondent No. 3 undertook to pay 82 1/2 maunds of areca in addition to Rs. 17/12 in cash as rent per year.
In 1955 respondent No. 3 filed an application before respondent No. 2, the Tehsildar of Thirthahalli, under section 12 of the Act and claimed that the standard rent payable by him to the appellant should be fixed (Tenancy case 85 of 1955 56).
Meanwhile respondent No. 1, the Government of Mysore, had, in exercise of the powers conferred on it by section 6 of the Act, issued a notification No. R9.
10720/ L. section 73 54.2 on March 28/29, 1955.
This notification purported to fix the standard rent for lands of the category to which the appellants land belongs at one third of the produce.
Feeling aggrieved by this notification the appellant filed the present writ petition in the High Court on December 16, 1955, His case was that section 6 (2) as well 'as the notification issued under it were ultra vires, invalid and inoperative.
Before dealing with the contentions raised before us by Mr. Shukla on behalf of the appellant it would be necessary to consider very briefly the scheme of the Act.
The Act has been passed by the Mysore Legislature because it was thought necessary to regulate the law which governs the relations of landlords and tenants of agricultural lands and to regulate and impose restrictions on the 230 transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturists in the State of Mysore except Bellary District and to make provisions for certain other purposes appearing in the Act.
That is the recital contained in the preamble to the Act.
It would thus be seen that the primary object of the Act is to afford much needed relief to the agricultural tenants by regulating their relations with their landlords and in that respect the Act bears a very close resemblance to the provisions of the Bombay Tenancy and Agricultural Lands Act, LXVII of 1948.
Indeed, the material provisions of the Act with which we are concerned are substantially similar.
Chapter I of the Act deals with the preliminary topic of defining the relevant terms used in the Act.
Chapter II contains general provisions regarding tenancies.
Section 4 defines persons who are deemed to be tenants.
Section 5 provides that no tenancy would be for less than five years.
Section 6 deals with the maximum rent payable by the tenants.
Section 8 provides for the calculation of rent payable in kind in the manner indicated by cls.
(i) and (ii) and prohibits the landlord from recovering or receiving rent calculated in any other manner.
Under a,. 9 receipt of rent in terms of service or labour is prohibited.
Section 11 abolishes all 'cases and section 10 enables the tenants to claim a refund of rent which has been recovered in contravention of the provisions of the Act.
Section 12 then deals with enquiries with regard to reasonable rent.
Sub section (3) of section 12 lays down five factors which have to be borne in mind by the authority dealing with an application for the fixation of reasonable rent.
Section 13 is a corollary of section 12 and authorises the reduction of rent after reasonable rent has been determined under section 12.
Section 14 deals with suspensions or remission of rent.
Section 15 231 provides for termination of tenancy.
Under section 18 a statutory bar is created against the eviction of a tenant from a dwelling house and under section 19 the tenant has the first option of purchasing the site on which he has built a dwelling house.
Similarly, under section 22 the tenant is given an option of purchasing the land leased out to him.
section 24 deals with some cases where relief can be granted against termination of tenancy and section 25 with relief against termination of tenancy for non payment of rent.
Section 30 provides for the procedure to recover rent and section 31 protects the tenants ' rights under any other law.
Chapter III deals with the procedure and jurisdiction of Amildar and provides for appeals against the decisions of the Amildar.
Chapter IV deals with offences and prescribes penalties for them and Chapter V contains miscelaneous provisions.
That, in its broad outlines, is the nature of the provisions made by the Act in order to give relief to the agricultural tenants.
Section 6 with which we are directly concerned in the present appeal reads thus: "6.
(1) Notwithstanding any agreement, usage, decree or order of a court or any law, the maximum rent payable in respect of any period after the date of coming into force of this Act by, a tenant for the lease of any land shall not exceed one half of the crop or crops raised on such land or its value as determined in the prescribed manner : Provided that where the tenant does not cultivate the land the rent payable shall be the reasonable rent to be fixed by the Amildar.
(2) The Government may, by notification in the Mysore Gazette, fix a lower rate of the maximum rent payable by the tenants of lands 232 situate in any particular area or may fix such rate on any other suitable basis as they think fit.
" As we have already indicated, the provisions of the two sub clauses of a. 6 are substantially similar to the provisions of section 6 ( 1) and (2) of the corresponding Bombay Act.
Indeed, it would be correct to say that Act with which we are concerned has been modelled on the pattern of the Bombay Act and has adopted most of its important provisions.
The validity of section 6 of the Bombay Act was challenged before this Court in "VasantalMaganbhai Sanjanwala vs The State of Bombay (1)" and it has been held that the said section is valid.
The reasons given by this Court in upholding the validity of is.
6 of the Bombay Act apply with equal force in support of the validity of section 6 of the Mysore Act and so the point raised by the appellant in challenging the validity of the impugned section is really covered by the earlier decision of this Court.
Mr. Shukla, however, contends that the preamble to the Act differs from the preamble of the Bombay Act inasmuch as the latter preamble refers to the fact that that Act was passed inter alia for the purpose of improving the economic and social conditions of peasants and ensuring the full and efficient use of land for agriculture and so considerations of social justice on which the validity of the corresponding provision of the Bombay Act was sought to be sustained cannot be invoked in dealing with the present appeal.
, We are not impressed by this argument.
It is true that the preamble to the Act merely says that the Act was passed because it was though necessary to regulate the law which governs the relations of landlords and tenants of agricultural lands and it does not refer to the requirement of social justice or does not specifically mention the object of ensuring the full and efficient (1) ; 233 use of land for agriculture.
But in dealing with a law which has been passed for the purpose of effecting an agrarian reform it would be pedantic to ignore the essential basis of its material provisions merely on the ground that the concept of social justice on which the said provisions are based has not been expressly stated to be one of the objects of the Act in the preamble.
We have already examined briefly the broad scheme of the Act and it is obvious that the important provisions of the Act are intended to improve the economic and social conditions of the agricultural tenants and so the policy of social justice can be safely said to be writ large on the face of the Act.
Therefore, we do not think that the argument based upon the fact that the preamble does not refer to social justice distinguishes section 6 of the Act from the corresponding section of the Bombay Act.
Then it is urged that unlike the Mysore Act, the Bombay Act has distinguished between irrigated land and non irrigated land and has provided by section 6(1) that the maximum rent payable in the case of irrigated land shall not exceed one forth and in the case of other lands shall not exceed one third of the crop of such land or its value as determined in the prescribed manner.
It is true that section 6(1) of the Act makes no such distinction between irrigated and non irrigated lands.
But that, in our opinion, is not a matter of essential importance.
Like section 6(1) of the Bombay Act section 6(1) of the Act also intends to provide for a maximum ceiling beyond which agricultural rent will not be allowed to soar and so far as the fixation of a maximum ceiling of rent is concerned it is not essential that a distinction must necessarily be made between.
irrigated lands and non irrigated lands.
It must be borne in mind that what the section does is to prescribe the maximum and not to provide for a minimum In prescribing a maximum it may be open to the Legislature to provide for a maximum which would be 234 common to all lands whether irrigated or not, That is why we are not inclined to attach any importance to the point that in the absence of classification of land, while prescribing a maximum section 6(1) suffers from any infirmity.
Then it is argued that the Bombay Act while prescribing a maximum has taken the precaution of also prescribing a minimum and the absence of the latter provision makes a material difference.
This argument is clearly misconceived.
It is true that section 8 of the Bombay Act which had been inserted by the Bombay Legislature in 1956 did provide for the maximum and the minimum rent, but as the decision of this Court in the case of Sanjanwala (1) shows in upholding the validity of the impugned provision of the Bombay Act no reliance was placed upon the fixation of the minimum rent.
Indeed, the minimum rent was fixed subsequent to the decision of the High Court which was under appeal before this Court in that case and the fact that a minimum had been prescribed subsequently has been only incidentally mentioned in the judgment.
Therefore the absence of a provision fixing the minimum rent does not introduce any infirmity in the impugned provision.
We are, therefore, satisfied that the case of the impugned section is substantially similar to the case of section 6 of the Bombay Act with which this Court was concerned in the case of Sanjanwala (1) and the challenge to the validity of section in the present appeal must, therefore, be held to be covered by the said decision.
That takes us to the question as to whether the impugned notification is invalid.
This notification has been issued in exercise of the powers conferred on the State Government by section 6(2) and it provides that the rate of maximum rent payable by the tenants of lands situated in the areas specified in Schedule I and Schedule If to the notification 235 shall be one third and one fourth respectively of the crop or crops raised on such lands with effect from the year commencing on April 1, 1955.
Schedule I deals with Maidan areas in which the maximum rent or rents shall be one third of the, crop or crops and Schedule If deals with Malanad areas in which the maximum rate of rent shall be one fourth of the crop or crops raised.
It appears that the classification of lands between Maidan an Malanad lands is well known in Mysore.
Maidan lands are lands on the plains, whereas Malanad are lands on hilly tracts.
The distinction between the two categories of lands takes into account the different conditions of rain fall, the different nature of the cultivation, the difference ' in the living conditions and the availability of labour and the difference in the quantity and the quality of the produce.
It is true that the notification does not prescribe the lower rate of the maximum rent area by area in the sense of district by district, but it purports to prescribe the said maximum by classifying the land in the whole of the State in the two well known categories of Maidan and Malanad lands.
It is urged by Mr. Shukla that the impugned notification is invalid, because it is inconsistent with the provisions of section 6(1).
The argument is that section 6(1) lays down a general rule and section 6(2) provides for an exception to the said general rule.
On that assumption it is contended that an exception cannot be allowed to swallow up the general rule and that is precisely what the notification purports to do.
This argument is based on the decision of the House of Lords in Macbeth vs Ashley It would be noticed that this argument raises the question about the construction of the two sub clauses of s.6.
Before addressing ourselves to that question, (1) [1874] L.R. 2 SC.
236 however, we may refer to the decision of the House of Lords on which the argument is based.
It appears that II o 'clock at night was the hour appointed for closing public houres in Scotland, although in special cases, and for well considered reasons, a deviation was allowed with reference to any particular locality really requiring it.
The Magistrates of Rothesay had ordered for closing at 10 instead of 11 and the effect of the order was that it embraced every public house in the burgh.
The House of Lords held that the Magistrates order .was ultra vires.
The statutory provision with which the House of Lords was concerned was contained in the Act of Parliament, 25 and 26 Vict.
c. 35.
As a result of these provisions 11 o 'clock at night was appointed to be the hour for closing public houses.
There was however, a proviso which said inter alia that in any particular locality requiring other hours for opening and closing inns, hotels, and public houses it shall be lawful for such justices and Magistrates respectively to insert in the schedule such other hours, not being earlier than six or later than eight o 'clock in the morning for opening,, or earlier than nine o 'clock or later than eleven o 'clock in the evening for closing the same as they shall think fit.
It is in pursuance of the authority conferred on them by the said proviso that the Magistrates of Rothesay passed an order embracing every public house in the burge by which a deviation from the statutorily fixed hour was effected.
In dealing with the validity of the order issued by the Magistrates Lord Chancellor Lord Cairns expressed his opinion that if the exception is to swallow up the rule it ceases, of course, to be an exception at all and that which might fairly have been an exercise of discretion becomes no exercise of the kind of discretion mentioned in the Act of Parliament.
It was for this reason that the order 237 issued by the Magistrates was declared to be ultra vires.
It was conceded that the Magistrates had a discretion, but the Lord Chancellor observed that the words "conferring discretion" expressly bear with reference to a particular locality and not with the whole burgh.
What should be true about the whole burgh had been treated as a matter reserved for and determined by the consideration of the Imperial Parliament.
The Lord Chancellor did not express any opinion on the question as to whether the discretion vested in the Magistrates can be exercised by them more than once but without deciding that point he held that the order of the Magistrates really amounted to evading an Act of Parliament.
In substance, the Magistrates had once for all attempted with regard to all the public houses in their district to change the rule laid down by the Act of Parliament.
Lord Chelmsford, who concurred with the opinion expressed by the Lord Chancellor, rested his conclusion on the ground that it was impossible to say that the limits which the Magistrates had defined could be called a particular locality within burgh and so it appeared that what the Magistrates had done was something very like an attempt to evade the Act of Parliament.
According to Lord Selborne, the participle "requiring" is connected with the substantive "locality" and therefore it must be a requirement arising out of the particular circumstances of the place.
That is why Lord Selborne thought that the Magistrates must in exercise of an honest and bona fide judgment, be of opinion that the particular locality which they ex(opt from the ordinary rule is one which, from its own special circumstances, requires that difference to be made.
It would thus be seen that though the general basis of tHe decision, as it has been expressed by Lord Cairne, appears to be that the exception cannot swallow up the rule one of the reasons which 238 ultimately influenced the decision was that the discretion had to be exercised bona fide and after due deliberation in respect of a particular locality and that the manner in which the order was issued indicated that the requirements of the particular localities had not been duly examined by the Magistrates.
It is significant that though Lord Cairns posed the question as to whether the discretion in question can be exercised more than once, he did not choose to answer it; but the trend of the opinions expressed by the Law Lords during the course of their speeches may seem to suggest that the discretion cannot be exercised more than once and in any case, it must be exercised by special reference to the particular locality as indicated by the proviso.
If an order is made in respect of the whole of the burgh, it cannot be said that it has been passed after exercising due discretion in respect of the requirements of each particular locality.
With respect, if the discretion is given to the Magistrates to provide for a departure from the rule prescribed by the general provision by reference to particular localities, it is not easy to see why the said discretion cannot be exercised more than once.
Indeed, situations may arise when the Magistrates may have to consider the matter from time to time in respect of different localities and if it appears to the Magistrates considering the cases of different localities that in regard to each one of them a departure from the general rule should be made, it is not easy to follow why the proviso does not justify different orders being passed by the Magistrates in respect of different but particular localities.
On the other hand, if the main provision is construed to mean that the time prescribed by it was to apply generally only with certain exceptions contemplated by the proviso, that would be a different matter.
However, it is not necessary for us to pursue this point further and to express a definite 239 opinion on the general proposition that an exception cannot swallow the general rule because, as we will presently show, this rule cannot be applied to the provisions of section 6 at all.
In this connection we may, however, point out that both in Max a well and in Craies, the decision in Macbeth 's case (1) appears to have been treated as an authority for the proposition that an order like the one passed by the Magistrates in that case amounted to an evasion of the Parliamentary statute, because it was not in honest and bona fide exercise of the discretion vested in them.
(Maxwell on Interpretation of Statutes, 11th Edn., p. 121, and Craies on Statute Law, 5th Edn., p. 75.) But assuming that the proposition for which Mr. Shukla contends on the authority of the decision in Macbeth 's case (1) is sound, does it apply to section 6 at all and the answer to this question will depend upon the construction of the provisions contained in the two sub clauses of section 6.
It would be noticed that section 6(1) declares a maximum beyond which no landlord can recover rent from his tenant.
In other words, as soon as the Act came into force a ceiling was fixed beyond which the landlord cannot recover rent from his tenant even though it may be justified by agreement, usage, decree or order of a court or any other law, The provisions of this sub section apply individually and severally to all agricultural leases and govern the relations of individual landlords and tenants in respect of payment of rent by the latter to the former.
The fixation of the maximum by sub section
(1) is really not intended to lay down a general rule as to what a landlord should recover from his tenant and it is in that sense alone that its relation to the provisions of sub section
(2) must be judged.
In that connection we may point out that there is one proviso to (1) (1874) L. R. 2 S.C App 352.
240 cultivate the land and it lays down that in their case the rent shall be reasonable rent to be fixed by the Amildar.
Sub section (2) is so worded that in terms it cannot be said to be a proviso to sub section
(1) add in substance it is not such a proviso nor is it an exception to sub section
Having prescribed the maximum beyond which agricultural rent cannot go under a. 6(1) the legislature has premitted the Government to fix a lower rate of the maximum rent in respect of lands situated in particular areas.
The Government has also been authorised to fix the payment of rent on any other suitable basis as it thinks fit.
In other words, the authority conferred on the Government is either to fix a lower rate or to fix any other basis on which the rent could be fixed.
The provision is an independent provision and so the two sub sections must be read as different, independent, though coordinate, provisions of the Statute.
It would, we think, be erroneous to treat sub section
(2) as a proviso or exception to sub section
Whereas sub.a.
(1) deals with and applies to all leases individually and prescribes a ceiling in that behalf, sub section
(2) is intend to prescribe a maximum by reference to different areas in the State.
The object of both the provisions is no doubt simi lar but it is not the same and the relation between them cannot legitimately be treated as the relation between the general rule and the proviso or exception to it.
The argument that by issuing the notification the Government has purported to amend a. 6(1) is, in our opinion, not well founded.
As we have already seen, a. 6(1) is intended to apply to all the agricultural leases until a notification is issued under a. 6(2) in respect of the areas where the leased lands may be situated.
It is not suggested that 241 under section 6(2) it is necessary that the Government must fix the lower rates by reference to individual lands and so there can be no doubt that even on the appellant 's argument it would be competent to the Government to fix lower rents, say districtwise.
If instead of prescribing the lower rates districtwise after classifying the lands into two categories which are well recognised, the Government prescribed the rates by reference to the said categories of lands throughout the State, we do not see how the said notification can be said to be inconsistent with section 6(2) or with section 6( 1) either.
The scheme of section 6 does not seem to postulate that after the notifications are issued under section 6(2) some area must inevitably be left to be covered by section 6(1).
Such an assumption would be inconsistent with the object underlying the said provision itself.
What section 6(1) has done is to fix a general ceiling apart from the areas and without considering the special factors appertaining to them.
Having thus fixed a general ceiling the Legislature realised that the ceiling may have to be changed from area to area and so power was conferred on the Government to fix the ceiling at a lower rate, The Government having examined the matter came to the conclusion that the more equitable and reasonable course to adopt would be to divide the agricultural lands into two well known categories and fix the ceiling by reference to them.
Now in the very nature of things, the Legislature must have anticipated that the exercise of the power under a. 6(2) might cover all the areas in the State and that may mean that the general ceiling prescribed by section 6(1) may not apply to any land which is covered by the notification.
If section 6(1) is not a general rule and section 6(2) is not an exception to it, then the consequence flowing from the issue of the impugned notification cannot be characterised as an exception swallowing up the 242 general rule.
That, in substance, is the view which the Mysore High Court has taken in the matter and we think that the said view is right.
In the result.
, the appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
The Mysore Tenancy Act, 1952, was enacted, inter alia, for the purpose of regulating the law which governed the relations of landlords and tenants of agricultural lands.
Subsection (1) of section 6 of the Act provided : "Notwithstanding any agreement, usage, decree or order of a court or any law, the maximum rent payable in respect of any period. by a tenant for the lease of any land shall not exceed one half of the crop or crops raised on such land or its value as determined in the prescribed manner".
"The Government may, by notification in the Mysore Gazette, fix a lower rate of the maximum rent payable by the tenants of lands situate in any particular area or may fix such rate on any other suitable basis as they think fit".
In exercise of the powers conferred by s.6(2), the Government of Mysore issued a notification purporting to fix the standard rent for land 227 specified in Sch.
I which dealt with Maidan areas i.e., lands on the plains at one third of the produce, and for those specified in Sch.
II which dealt with Malnad areas i.e., lands on hilly tracts at one fourth.
The appellant who owned garden land in the district of Shimoga in Mysore State and who had leased out the land to a tenant, challenged the validity or s 6(2) of the Act as well as the notification on the rounds that they contravened articles 14, 19(1) (f), 26, 31 and 31 A of the Constitution of India, and that, in any case, the notification was inconsistent with section 6(1) inasmuch as it was based on section 6(2) which being an exception to section 6(1) could not be allowed to swallow up the general rule and that was precisely what the notification purported to do.
The Mysore Tenancy Act was modelled on the pattern of the Bombay Tenancy and Agricultural Lands Act, 1948, and the provisions of s.6 of the Mysore Act were.
similar to s.6 of the Bombay Act.
In Vasantlal Maganbhai Sanjanwala vs The State of Bombay, ; ; it was held that section 6 of the Bombay Act was vaild.
The appellant contended that the aforesaid decision was not applicable because there were difference,; between the two Acts inasmuch as (1) in the preamble to the Bombay Act it was stated that it was passed inter alia for the purpose of improving the economic and social conditions of peasants and this was not mentioned in the Mysore Act, (2) unlike the Mysore Act, the Bombay Act, made a distinction between the irrigated and non irrigated land (3) the Bombay Act while prescribing a maximum took the precaution of also prescribing a minimum and the absence of the latter provision in the Mysore Act made a I material difference.
Held, that : (1) the Mysore Tenancy Act, 1952, was substantially similar to Bombay Tenancy and Agricultural Lands Act, 1948, and that the question as to be whether section 6 (2) of the Mysore Act was valid must be held to be covered by the decision the Vasantlal Maganbhai Sanjanwala vs The State of Bombay ; Accordingly, s.6(2) of the Mysore Tenancy Act, 1952, was valid.
(2) on its true construction, section 6(1) of the Mysore Tenancy Act, 1952, wag intended to apply to all agricultural leases until a notification was issued under s.6(2) in respect of the areas where the leased lands might be situated ; s 6(2) could not, therefore, be considered as an exception to s.6(1) Consequently, the notification in question was valid, 228 Macbeth vs Ashley, (1874) L.R. 2 Sc.
App. 352, considered and held inapplicable.