MALLIKARJUN BHAVANEPPA Vs. SATYANARAYAN LAXMINARAYAN

JUDGEMENT

(1.) Opponent 1 became a tenant of the petitioner under a mulgeni lease dated 27-2-1915. Under this lease, it was provided that if the tenant was in arrears of rent, the landlord would be entitled to terminate the lease and enter into possession. Admittedly on 13-2-1949, opponent 1 was in arrears of rent for three years and he was also in arrears of rent on 5-5-1949, for three years. 5- 5-1949, being the material date to consider under the provisions of Section. 14 (1) (a) (i), Tenancy Act. On 22-8-1949, the landlord, the petitioner, made an application to the Mamlatdar for possession, and on 27-9-1949, the Mamlatdar ordered possession to the landlord. The tenant went to the Collector and the Collector reversed the order of the Mamlatdar on 2-8-1950. There was a revision application to the Tribunal and the Tribunal confirmed the Collector's order. In doing so it followed its earlier decision given on 23-4-1951, where the applicant was one Venkat Narayan Mahajan.

(2.) Now, the question that arises on this petition is whether the decision of the Tribunal is merely erroneous in law or whether there is an error apparent on the face of the record. Mr. Murdeshwae with his usual vigour has strongly urged upon us that if we decide against the first opponent and against the Tribunal we will be going contrary to the decision of the Supreme Court and we run the risk of being corrected by the Supreme Court. Our attention has been drawn to the decision of the Supreme Court in Parry & Co. Ltd. v. Commercial Employees' Association, Madras, and the observations of Mukherjea J. at p. 524 are, with respect, observations which this Court has always accepted as the correct law on the question of certiorari, and the observations are to the effect that when a Court with jurisdiction erroneously decides a matter, that Court or Tribunal cannot be corrected, by a writ of certiorari. But Mukherjea J. again, with respect, rightly points out the distinction between an erroneous decision and a decision of a Tribunal where an error is apparent on the face of the record. Therefore, as we said before, the question here is whether the decision of the Tribunal is erroneous or it is a decision which is vitiated by the fact that there is an error apparent on the face of its record. If the decision is merely erroneous, Mr. Murdeshwar is right that we should not interfere, however erroneous that decision may be, On the other hand, if we are satisfied that there is an error apparent on the face of the record, then it would be our duty to interfere.

(3.) Now, what the Tribunal says is this. It accepts the finding of fact that the tenant was in arrears for three years, it accepts the right of the landlord to terminate the tenancy, but what it says is that the landlord was not entitled to get an order of possession because the landlord gave no notice to the tenant. As we shall presently point out, there is no provision in the Tenancy Act which makes it incumbent upon the landlord to give notice of termination of the tenancy when the tenant has failed to pay rent. On the contrary, it is clear from the provisions of the Tenancy Act that the Legislature did not intend that the landlord should give notice when he was seeking to resume possession of the demised land on the ground that the tenant had failed to pay rent. The relevant provisions of the Act on this question are to be found first in Section 14(1) which provides: