JUDGMENT <NAME>, J.

1. This Rule raises a fundamental question under the West Bengal Bargadars Act, 1950. It was contended that <ORG> established under the Act or an Appellate Officer appointed under it, was not a 'tribunal' within the meaning of Article 227 of the Constitution and therefore this <ORG> had no jurisdiction under the Article to interfere with a decision of either of those authorities. The Rule was issued under Article 227 and is directed against certain orders passed under the Bargadars Act.

2. If We could accept the contention as correct, it would obviously be unnecessary to proceed further and refer at all to the facts of the case. But as, in our opinion, the contention is not sound, it is necessary to state the facts.

3. The opposite party is an inhabitant of village Sudhangsupur in the District of 24 Parganas and the petitioner is a Nayeb in the employment of <ORG> which owns an extensive area of 'khas' lands in the locality. On the 16th April, 1950, the opposite party made an application to <ORG> in which he stated that the petitioner had declined to allow him to continue his cultivation of about 15 Bighas of land which he had been cultivating under the <ORG> system for the last 16 or 18 years. It was prayed that suitable orders might be passed which would enable him to continue such cultivation. The case of the opposite party was that the applicant had been cultivating the lands, not under the <ORG> system but as a labourer, paid for his labour in money, and that he had been doing so under written agreements, executed annually. It was accordingly contended that the applicant was not a bargadar, as defined in the Act and the dispute was not one within the jurisdiction of the <ORG>.

This contention was given effect to by the Board which found that the agreement for the previous year, which was admitted by the applicant made no reference to his receiving a share of the produce but on the other hand, the endorsements of payment on the agreement, which also were admitted, showed that he had received payments in money or in paddy in lieu of money on various dates, as his wages. It was accordingly held, that the opposite party was not a Bargadar and in that view his application was rejected.

4. The opposite party then appealed to the Appellate Officer who reversed the- decision of the <ORG>. The, Appellate Officer held that although according to the terms of the agreement, <ORG> could certainly not be held to be a Bargadar, yet section 18 of the Act entitled him to go behind the written contract and give effect to the real relationship between the parties, He found such relationship to be that "between a Landowner and his Bargadar", relying on certain papers he had called for from the petitioner at the instance of <ORG> and also what he referred to as "common knowledge" about the origin of the contract system introduced in the Estate. In the result, he declared <ORG> to be a Bargadar and remanded the case to the <ORG> with a direction to pass the actual order for possession after taking into consideration certain circumstances.

5. The petitioner then moved this Court under Article 227 of the Constitution and obtained the present Rule.

6. In support of his preliminary objection, Dr. <NAME> contended that a <ORG> constituted under the Bargadars- Act was only a body of arbitrators and in no sense a tribunal. According to him, "tribunals", as contemplated by Article 237 of the Constitution, were not something different from <ORG> and the term had been added only in order to cover bodies or authorities who were in fact <ORG>, but were yet not called by that name. A <ORG> under the Bargadars Act, it was contended, was not a tribunal, because it was not a <ORG> and it was not a <ORG>, because it was not bound to hear evidence. Dr. <NAME> admitted that the absence of an obligation to hear evidence was the only circumstance he could point to as distinguishing a <ORG> from a <ORG>.

7. Before proceeding further, I may mention that the exact point is covered by an unreported decision of <ORG> to which we drew the attention of the learned Advocates. In 'Civil Revn. No. 405 of 1951', decided on 19-6-1951, by <NAME>, C. J. and <NAME>, J., the learned Chief Justice observed as follows:

"There can be no doubt, I think, that <ORG> has to hear applications and decide according to law. They have to give the parties an opportunity of putting forward their contentions. and I think that there can be no doubt whatever that <ORG> is a tribunal which has to exercise its functions judicially. The Appellate Officer hears appeals from the Board and I think it is equally clear that he is a tribunal."

8. It would have been enough for us to say that we would follow this decision with which we agreed, but in view of the arguments addressed to us at some length, I might as well deal with them.

9. I have no doubt at all that the extreme contention of Dr. <NAME> that the word 'tribunals' in Article 227 also means <ORG> but only <ORG> not so called, must be put on one side. The same argument was advanced before <ORG> in the case of ' <CITATION> ', 1950 <ORG>, in connection with Article 136 where also the two words occur, but it found no favour with the majority of the Judges. "The word 'tribunal' has been used", observed <NAME> "in previous legislation in a. number of statutes and it is difficult to think that the Constitution, when is introduced this word in Article 136 , intended to limit its meaning to only those tribunals which, though not described as <ORG> strictly speaking were discharging the same or analogous functions as were being discharged by <ORG>."

It is to be noticed that Article 136 deals with power to entertain an appeal and if even in that Article the word 'tribunal' means bodies or authorities other than <ORG>, there is less reason for saying that in Article 227 which deals with the power of superintendence, 'tribunal' and '<ORG>' are synonymous. Even <NAME>, J. who represented the minority view of <NAME> and himself held that the <ORG> having authority in that behalf, might interfere with decisions of non-judicial tribunals by means of writs. The fact that Article 227 does not mention writs, which are provided for elsewhere, but leaves the procedure unnamed seems to me to be immaterial.

10. Dr. Sen <NAME> pointed out that in Section 107 of the Government of India Act, 1915 and Section 224 of the Act of 1935, which were predecessors of Article 227 , the word '<ORG>' was qualified by the words "for the time being subject to its appellate jurisdiction." Those words do not appear in Article 227 and Dr. Sen <NAME>'s contention was that the omission of those words and the addition of the word 'tribunal' indicated that the intention was only to bring within the purview of the Article <ORG>s which. though <ORG>s, were not subordinate to the High <ORG>. I am unable to accept that construction of Article 227.

11. The course of the exercise of revisional jurisdiction by <ORG> over bodies or authorities deciding rights of parties has been the same in this country as in England except for the temporary check imposed by the <ORG> of India Act, 1935. At the beginning it was limited to acts or decisions of <ORG> properly so called, but gradually it was extended to bodies of an ambiguous status till at last it reached out occasionally even to organs of the <ORG>. The <ORG> found it possible to interfere with acts done by the second and the third type of authorities by calling them 'judicial' but, as has been pointed out, at least in the case of administrative bodies "it was not the 'power' which wag judicial, but the procedure which the <ORG> held must be followed before the power could be exercised."

The <ORG> insisted that whoever decided anything which affected rights of parties must at least proceed after a due enquiry into the facts and give an opportunity to the parties to be heard and this obligation they enforced even on bodies which were not, strictly speaking, <ORG> and even on administrative authorities when they were not merely taking executive action but determining a question. If, there was nothing in relevant statute or rules or regulations which made such procedure obligatory, the <ORG> said they would supply the omission from the common law or natural justice 'COOPER v. WANDSWORTH BOARD OF WORKS', (1863) 14 C B (N S) 180 at p. 194, and where there were prescribed rules, the direction would be to conform to them. As the sphere of <ORG> activity began to widen, the administration became more and more complicated and a large variety of new rights and obligations came into existence which were entrusted for decision or enforcement to administrative officers or special bodies. The <ORG> took it upon themselves to see that even such authorities did not act arbitrarily and intervened, except when expressly debarred by statute, to make them follow the rules prescribed for them and also the fundamental principles of justice which every statute conferring a power was taken to intend.

But it was often found difficult to regard the functions of such authorities as 'judicial', even according to the extended meaning of the term, and therefore the concept of 'quasi-judicial' functions was introduced for the purposes of review by the Courts of decisions of administrative or special bodies. affecting rights of individuals. With certain limitations, even domestic tribunals were not excepted as will appear from the decision of <NAME> as he then was, in '<NAME> v. WORKERS', Union', (1929) 1 Ch. 602, and of <ORG> in the recent case of 'LENNOX ARTHUR PATRICK O'REILLY v. <NAME>', 54 Cal W N 124 (P C).

In England the interference has been chiefly by means of writs, but in India, where writs can only within the Original Jurisdiction of <ORG> which had such jurisdiction, the power of superintendence has been, till recently, all that could be relied upon. Still, <ORG> have attempted generally to proceed on the same principles and follow the same course as in England, but they have been handicapped by the requirement that the bodies with which they could interfere must be Courts. The little they have been able to do has been by calling different ambiguous bodies 'Courts' although in doing so they greatly strained the term. The Government of India Act of 1935 curtailed their powers further in that revision of judgments of inferior Courts in exercise of the power of superintendence was expressly forbidden.

12. In my opinion, Article 227 of the Constitution has now removed this double handicap. The Article is not still keeping <ORG> power of superintendence limited to <ORG>, as Dr. <NAME> contended, but has extended it to persons and bodies who also determine questions between parties under the authority of the <ORG>, though they are not <ORG>, properly so called. And the power of superintendence now comprises both administrative and judicial control. Dr. <NAME> referred to sub- article (2) of Article 227 , where only the word '<ORG>' is used but not 'tribunal.' But that sub-article relates only to some special administrative matters and it begins by saying that the provision made by it for specified powers is without prejudice to the generality of the Provisions contained in sub- article (1).

'Tribunal' however cannot mean private persons or bodies or authorities who decide matters without reference to any rules and only according to their own notions of right and wrong. Although, in certain circumstances, a suit may lie in <ORG> in respect of the acts of such persons or bodies, they cannot be said to be subject to general superintendence by the High <ORG>. In my view, the word 'tribunal' in Article 227 means, as Mr. <NAME> suggested, a person or a body, other than a <ORG>, set up by the <ORG> for deciding rights between contending parties in accordance with rules having the force of law and, I would add, doing so, not by way of taking executive action but of determining a question. It was obviously in that view that a commissioner of a <ORG>, acting as <ORG> under the Motor Vehicles Act , was held to be a tribunal within the meaning of the Article in ' <CITATION> ', 55 Cal W N 81 and an Appellate <ORG> under the Rent Control Act of 1950 was held to be a tribunal in ' <CITATION> ', 55 Cal W N 611. The effect of the addition of the word 'tribunal' to the word '<ORG>' in Article 227 and the removal of the bar against revision of judgments in exercise of the power of superintendence, in my view, is that all agencies, whether <ORG>s or not, performing the duty of deciding disputed questions of right between parties on behalf of and under the sanction of the <ORG> and in accordance with <ORG>-made laws, are placed under the administrative and judicial control of the High <ORG>.

13. A second branch of Dr. <NAME>'s argument' was that a <ORG> setup under the Bargadars Act would still not come under Article 227 , for it was only a body of arbitrators who were not bound to hear evidence and could decide a case just as they liked after making such enquiry as they thought fit to make or without making any enquiry at all. This view of a <ORG> is not warranted by the provisions of the Act. Dr. <NAME> relied on Rule 7(2) of the Rules, framed under the Act, which provides that the "<ORG> may make such enquiries as it may think fit before making an award or order", but that is clearly a general provision and does not mean that even if the parties wish to adduce evidence, the <ORG> may decline to take it, if it does not 'think fit' to hear evidence. Indeed, Section 10 of the Act confers on the <ORG> all the powers which a civil Court has under the Code of Civil Procedure as to summoning and examining witnesses and compelling production of documents. It is not easy to see why these powers should have been conferred, if it was not intended that the <ORG> should take all necessary oral and documentary evidence.

Again, Section 3(1) of the Act enjoins the <ORG> to give effect to agreements in writing regarding division of the produce and the Explanation to Section 7(2) makes it the duty of the <ORG> to consider whether consent to such agreements was caused by fraud, coercion, misrepresentation or mistake. In connection with applications for resumption of lands under Section 5(1) , the question whether the person cultivating the lands is or is not a Bargadar must often arise and under Section 5(2) , the <ORG> must have often to decide whether the owner is cultivating the resumed lands himself or has let them out to a different Bargadar. These are all matters of evidence and the inclusion of such matters among the duties of the <ORG>, coupled with the provisions of Section 10(1) . makes it abundantly clear that the Act intends the <ORG> to take and hear evidence. It is true that by reason of Section 10(2) , the <ORG> is not bound to observe the provisions of the Evidence Act , but that may only show that the <ORG> is not a <ORG>.

14. The <ORG> decides disputed questions of right between contending parties. It acts under the authority of a statute. Under Rule 7(1), it has to give the parties an opportunity to be heard. Under Section 10 it has all the powers of civil <ORG> regarding summoning and examination of witnesses and production of documents- and it is obviously intended that evidence shall be heard. The <ORG> has to decide questions in accordance with the provisions of the Act, as expressly directed by Section 7(2) . Under Section 7(3) , it makes an award or passes an order. Failure to comply with an award or order made by it is punishable with imprisonment or fine under Section 14 . Under Section 12(2) , such award or order is executable and under Section 15 , any money payable under an award or order is recoverable as an arrear of public demand. The orders of the <ORG> thus take effect by their own force and they are not mere declarations which have to be enforced by further proceedings. Under Section 11 , orders and awards of a <ORG> are appealable Under Rule 12, the Appellate Officer also is bound to give the parties an opportunity of being heard. Both the <ORG> and the Appellate Officer have thug almost all the trappings of a <ORG> and perform analogous functions, though they are not <ORG>s, properly so called.

15. The provisions summarised above can leave no doubt that the <ORG> and the Appellate Officer are both tribunals within the meaning of Article 227 and that, as such, they are subject to the judicial superintendence of this <ORG>. It is true that Section 9(1) of the Act, provides that no award or order of a <ORG> or an Appellate Officer shall be questioned in any <ORG> and under <CITATION> , '<ORG>' includes the High <ORG>. But, obviously, those provisions cannot prevail against the Constitution.

16. Some question was raised about the correct form of procedure in respect of proceedings under Article 227. No special procedure has been prescribed either by the Constitution or by any rules. The procedure of an application in revision and a Rule issued thereon was followed in proceedings under Section 107 of the Government of India Act of 1915 and the same procedure, which has so far been adopted for proceedings under Article 227 , appears to be a convenient and appropriate one particularly as it serves to distinguish a proceeding under Article 227 from a proceeding by way of a writ under Article 226. There appears to be some over-lapping between the two Articles which makes it desirable that proceedings under one should be distinguishable from those under the other.

17. What the true limits of the jurisdiction under Article 227 is, presents a further question of some difficulty. I am aware that in practice the Article is being applied as if it confers the widest possible powers on <ORG>, including the power of revising the decision of an inferior <ORG> or tribunal on the merits and substituting a correct decision for the erroneous one as a matter of everyday procedure to all cases. I have strong doubls whether a power of superintendence can include such power. I shall leave aside the case of <ORG>s, where the decision may be revisable under other provisions of law as well, such as Section 115 of the Civil P. C, and where a further question may arise as to how the powers under such provisions & under Article 527 are to be adjusted. But even in the case of tribunals, I am not sure that Article 227 gives <ORG> power to review the substance of the decision itself rather than merely power to control the procedure preparatory to the decision and to require observance of the prescribed forms of procedure and a proper standard of fairness.

Extreme cases can certainly be thought of where something so shocking to the sense of justice has occurred that the <ORG> considers it necessary or even imperative to quash the proceedings or the decision altogether or to decide the matter itself, but normally a power of superintendence would not seem to imply the ordinary appellate or revisional powers of a superior <ORG>. It is, however, not necessary to decide that question finally in this case, because the power under Article 227 at least includes power to require that the facts shall be fully investigated and fairly found and when found, fairly considered after giving the parties a proper opportunity to explain them. That cannot be said to have been done in the present case and failure in that regard is a sufficient ground for interference.

18. To return now to the facts, the whole approach of the Appellate Officer to the question before him was wrong, because he began by saying that Section 18 of the Act entitled him to disregard the contract and find out the. facts for himself. All that Section 18 means is that where there is a barga contract, the rights of the owner and the <ORG> shall be governed entirely by the provisions of the Act and any terms or conditions contained in any contract or instrument or custom or usage which are contrary to those provisions, shall be of no force or effect. They must yield to the Act. The section does not mean that even as regards the existence or otherwise of a settlement of barga type, the contract or instrument must or may be disregarded. The <ORG> or the Appellate Officer is undoubtedly entitled to see whether a written contract purporting to evidence the arrangement between the parties is a sham document, not representing the true incidents of the contract, but the source of that power is not Section 18 . It appears that because the Appellate Officer started with the notion that Section 18 empowered him to treat the agreement as not existing at all, he strayed away even at the beginning from the proper line of approach.

The proper line to take before discarding the instrument would be to see if the recorded payments were consistent with the terms of the agreement or suggested an arrangement on other terms. If the payments were found to be consistent with the terms of the deed, other and stronger reasons would be required in order to hold that the deed did not represent the true relationship between the parties. The Appellate Officer also refers to what he describes as a matter of common knowledge that the contract system was introduced in the Estate 10 or 12 years ago in order to ensure that the cultivators could have "no legal right of possession over the produce of the land." What he means is by no means clear-for if the Estate really introduced a contract system In lieu of the barga system, it had every right to do so & there is no reason why the contracts should not prevail. If it is meant that a form of contract, not in accordance with the real Incidents of the agreement was gone through, then the alleged object is not intelligible for 10 or 12 years ago the Bargadars Act was not In existence and there could be no motive for misrepresenting payment of a share of the produce as payment in money.

The Appellate Officer does not seem to have been aware that the definition of 'Bargadar' in the Bargadar's Act was in the same terms as the proviso to Section 3(17) of the Bengal Tenancy Act and he does not seem to have realised that under that proviso, 10 or 12 years ago receipt of a share of the produce instead of receipt of payment in money would not improve the status of the person cultivating the land in any way. Throughout, the Appellate Officer was misled by his wrong notions of law with the result that he failed to examine the facts in the way they should have been examined.

Nor is his examination of the evidence satisfactory. He seems to have treated the 'Field Book' produced for the first time before himself, as a great discovery, but in reality it added nothing to the endorsements on the back of the agreement which the <ORG> had had before it. He read the entries in the Field Book in his own way, apparently without any explanation by anybody. Before us, Mr. <NAME> attempted to give an explanation, with the assistance of his client, but Dr. Sen <NAME> naturally objected and said, In my opinion Tightly, that the whole matter must be gone Into on proper evidence by the authorities below. He also complained that the <ORG>, enitspart, had paid no heed to his client's case that the agreement had been obtained from him by undue influence and fraud and had not given him any opportunity to adduce evidence in that behalf and, further, had failed to consider that unlike the other endorsements of payments, the last two bore no thumb impression of his client.

19. In my opinion, there has been no due enquiry into the facts and no attempt to find out, either by the Appellate Officer or the <ORG>, whether there is another side to the case, each overlooking one side. The case must therefore go back. When we observed that the case would be remitted to the <ORG>, Dr. <NAME> submitted that there was a difficulty in the way of following that course, because Rule 7 (3) required the <ORG> to dispose of an application within three weeks of the date of its filing. In my opinion, there is no substance in that objection, for the time-limit cannot apply when the case is remanded by a superior authority. Indeed, if observance of the time-limit be mandatory, the decision of the Appellate Officer, which was in favour of Dr. <NAME>'s client, was void, because it was given much later than fifteen-days from the date of the filing of the appeal which is the time limit under Rule 12 (2).

20. In the result, we set aside the orders of both the Appellate Officer and the <ORG> and remand the case to the <ORG> in order that the application may be heard afresh. The <ORG> must consider all the issues raised by the parties, including the issue of alleged coercion, if pressed, and must give the parties proper opportunity to adduce evidence on the issues, both oral and documentary, and also make such further enquiry, if any, as it may itself desire to make, with proper notice to the parities. The <ORG> will then consider all the materials and decide whether or not <ORG> held the lands under the <NAME> system and pass final orders in accordance with its finding and the provisions of the Act. Nothing said in this judgment must be taken as an expression of opinion on any question of fact or the truth or otherwise of the case of either party.

21. The Rule is thus made absolute. There will be no order as to costs.

<NAME>, <NAME>

22. I agree, but I would like to add a few words.

23. Broadly speaking, two questions of fundamental importance have been raised before us. One relates to the interpretation of Article 227 of the Constitution and directly embraces the determination of its scope and the extent of the powers and authority of this. Court thereunder. The other concerns primarily the functions - more particularly their nature and character - of the Bhagchas Conciliation. Board and of the Appellate Officer under the West Bengal Bargadars' Act, 1950. In the determination of this latter question, a construction-of the provisions of the West Bengal Bargadar's Act referred to above, is plainly involved, but the applicability of Article 227 to the present case will also in the ultimate analysis, depend largely on a consideration of the said provisions. Both the Act and the Constitution have, therefore, to be carefully examined for a proper disposal of this Rule before us.

24. Article 227 of the Constitution vests this <ORG> with powers of superintendence over "all <ORG>s and tribunals throughout the territories in relation to which it exercises jurisdiction." It manifests, on the face of its language, a clear departure not only from its immediate predecessor Section 224 of the Government of India Act, 1935, but also from the cognate earlier provisions namely, Section 107 of the Government of India Act, 1915 and Section 15 of the Charter Act of 1861. This departure is at once striking and highly suggestive and a close study of it in restrospect seems to be of immense help in the solution of the first question now set before us.

25. Under Section 15 of the Charter Act this Court had powers of 'superintendence over all <ORG> which may be subject to its appellate jurisdiction' and such powers could be exercised not merely for purposes of administrative control, but also for judicial interference, that is, for interference with judicial decisions of the inferior <ORG> vide 'NILMONI SINGH v. TARAKNATH MUKHERJEE', 9 Ind App 174: 9 Cal 295 (PC). Section 107 of the Government of India Act, 1915, though it used a slightly different language, introduced no change in the situation. Then came Section 224 of the Government pf India Act , 1935, which expressly limited this power of superintendence to administrative matters. Such was the position immediately before January 26, 1950, when the new Constitution came into force and in Article 227 it made the following provision:

"<ORG> shall have superintendence over all <ORG> and tribunals throughout the territories in relation to which it exercises jurisdiction."

26. Viewed in the above background, certain fundamental changes become plainly visible. On the face of the Article, <ORG> power of superintendence now extends not merely over "all <ORG>-subject to its appellate jurisdiction" but over "all <ORG> and tribunals throughout the territories in relation to which it exercises jurisdiction." The limitation again of this power to administrative control which was there under Section 224 of the Government of India Act, 1935, has been swept away. Apparently, therefore, vital changes of a two-fold character have been introduced by Article 227 and for such introduction the Constitution has employed no secret method. With characteristic boldness restrictive clauses have been omitted from the new Article and words, apparently indicative of an extended jurisdiction, have been openly added. To all appearances, <ORG> power of superintendence has now been enlarged both as regards subject and subject-matter and, although the reality, extent and effect of the change may have to be more closely examined, there is little doubt, if mere language be the guide, that the Constitution intended that the High <ORG> would now possess far wider powers of superintendence than they ever had.

27. That by the Constitution there has been some enlargement of <ORG> power of superintendence has not been disputed before us but the extent of this enlargement has given rise to acute controversies. It has been accepted by Dr. <NAME> who has appeared to oppose this Rule that this power of superintendence does comprehend both administrative and judicial controls and does extend over all <ORG> situate within the territorial jurisdiction of <ORG> concerned, but a point has been raised - and seriously pressed before us - as to the meaning of the word 'tribunal' as used in Article 227.

That word, Dr. <NAME> has boldly argued, is a mere surplusage and does not add to or alter the scope of the Article and in support of this argument he has placed strong reliance upon the juxtaposition of the two words '<ORG>' and 'tribunal' in the Article in question and upon the well-known doctrine of 'ejusdem generis'. 'BHARAT BANK'S CASE', 1950 SCR 459, apparently against this contention of Dr. <NAME>, has been sought to be distinguished on the ground that the Article there considered, namely Article 136 , related to entirely different matters and immediately concerned the powers and duties of the supreme judiciary of this land. No inference, so pleads Dr. <NAME>, can or ought to be drawn from that decision as to the meaning of the word 'tribunal' in Article 227.

28. The point, thus raised, requires careful consideration, but, having given the matter my best thoughts, I am unable to pursuade myself to accede to Dr. <NAME>'s argument. That argument, to say the least, is utterly inappropriate in interpreting the Constitution and appears to be basically unsound and opposed alike to principle and authority. It clearly overlooks the historical setting in which the Article in question was conceived and patently ignores the experience of ages upon which its whole structure was built. It is founded upon a total misconception of the role of the superior judiciary to wit, <ORG> - under the Constitution and upon an utter disregard of the forces which gave birth to it and sustain its life. To yield to such an argument would indeed be disastrous and destructive not merely of the dynamic potentialities of the living organism which we so fondly and proudly called our Constitution, but also of one of the chief purposes for which <ORG> exist under the same.

A similar argument was found unacceptable by <ORG> in 'BHARAT BANK'S CASE', 1950 SCR 459 and, as I am not impressed by learned Counsel's attempt to distinguish that case from the present on the point, now before us, I am bound to reject his argument. The attempted distinction seems to be without substance and wholly unavailing and I have no hesitation in holding that the word 'tribunal' as used in Articles 136 and 227 bears the same meaning. On reason and on authority the Articles must, therefore, be held to embrace within their legitimate spheres of influence not merely judicial bodies but quasi-judicial bodies as well.

29. The net conclusion thus emerges that under Article 227 of the Constitution <ORG> has power of superintendence over all judicial and quasi judicial bodies within its territorial limits in respect of both judicial and administrative matters. Written in letters of light the Article illumines the entire field of judicial and quasi-judicial activities with its own effulgence which apparently perceives no barriers. The power conferred is immense and, as there are no words of restraint employee by the Article, the control envisaged may well be unlimited. Does it, however, necessarily follow that the exercise of this unlimited power should also be unrestrained and should be made in every case of error, however trifling, committed by the subject bodies? If that be the legitimate construction it would plainly abrogate the necessity of almost all the provisions contained in the different municipal laws for the exercise of appellate or revisional powers.

Such could never have been the intention of the Constitution and, in fairness to it, it is only just to hold that, however unlimited the control may be in its scope and extent, its exercise should be judicially restrained. The mere fact that the Constitution employs no word of restraint is not enough to justify untrammelled exercise of the power, conferred by the Article in question. In the vastness of its extent and the great responsibilities which such vastness necessarily carries with it lies the restraint to the exercise of that power of superintendence. It is not to be resorted to for correcting any and every mistake or for undoing any and every kind of injustice. By its very nature the remedy provided by the Article is to be applied only to extraordinary cases. For ordinary cases the normal remedies under the municipal laws are available and it is only wise that the field pertaining to such remedies should be left untouched by the constitutional powers under Article 227.

Only, therefore, where grave injustice has occurred or is likely to occur by reason of some mistake committed by the inferior judicial or quasi-judicial bodies and the municipal law provides no adequate remedy <ORG> are entitled-and indeed bound-to intervene under Article 227 and correct the mistake and grant appropriate relief. Where again gross violation of some statutory provision has been made by the inferior bodies and against such violation no adequate remedy is to be found in municipal law <ORG> ought to interfere, in appropriate cases, under the said Article. That seems to be the true view of the control contemplated by Article 227 and the more I look into the matter the more I feel convinced of the justness and propriety of that view.

30. Having thus determined the nature, scope and extent of the power under Article 227 and the manner of its exercise I proceed now to consider the second question, demanding consideration in the present case. The main provisions of the West Bengal Bargadars' Act, bearing upon this question, have already been referred to by my Lord in the judgment pronounced by him and therein they have been sufficiently discussed. Very little remains to be added and I would only draw attention to Sections 3 (2), 4, 8 and 12 and Rule 3, 5, 6, 9, 12 (1) and 13. The rule-making power is contained in Section 19 and the Rules having been made under that power are really parts of the statute itself and have the force of law and thus the question raised before us has to be answered upon a proper consideration of the relevant sections of the Act and of the relevant Rules as well. A glance at these relevant provisions, as indicated above, will be enough to show that both <ORG> and <ORG> under the West Bengal Bargadars' Act are at least quasi-judicial bodies and thus come within the purview of Article 227.

31. Section 6 of the Act read with Section 7 provides for establishment of <ORG> by <ORG> for decision of disputes between 'Bargadars' and 'Owners' with regard to cultivation and produce of land. Sections 3 , 4 and 5-and to some extent Rule 3 also-define the substantive rights of the parties in relation to such produce and cultivation and Section 7 (2) enjoins that, in deciding the disputes, the <ORG> has to observe the provisions of the said Sections 3 , 4 & 5 . The procedure to be followed by the <ORG> is laid down in Section 12(1) read with Rules 6 and 7 under which the parties concerned have a right to be heard and Section 10 makes it clear that the <ORG> -although it is not bound to observe the Pro visions of the Indian Evidence Act (vide Section 10 (2))-has the powers of <ORG> in regard to the taking of evidence (vide Section 10 (1). Rule 9 imposes a duty on the <ORG> to make a record of essential facts and also impliedly recognizes the power of the <ORG> to take evidence.

The decision of the <ORG> is to be in the form of an award or order (vide Section 7(3) , which award or order, as the case may be, is intended to be binding on the parties (vide Section 14 and also Sections 9 and 18 ), and under Section 15 any money payable under such award or order is recoverable as an arrear of public demand. Under Section 12(2) , the <ORG>'s award or order is executable and Rule 13 lays down the manner of execution. Against an award or order of the <ORG> an appeal may be taken to the Anpe1-late Officer who is appointed by <ORG> (vide Section 11 ). The appeal is to be filed within the period prescribed in Rule 10 in form indicated in Rule 11 and the procedure for-this appellate stage is provided in Section 12(1) read with Rule 12 under which also the parties concerned have a right to be heard. The order of the Appellate Officer is executable under the Act (vide Section 12(2) ) and the manner of its execution is also laid down in Rule 13. There is one other provision to which reference ought to be made at this stage. That is Rule 6 (2) under which the <ORG> is authorised to make such enquiries as it may think fit before making an award or order.

32. I have given above a brief outline of the relevant statutory provisions which, on analysis, leads plainly to this position that both the <ORG> and the Appellate Officer under the Act are appointed by <ORG> to exercise the power of the <ORG> to decide disputes or controversies between its subjects relating to rights of property and that they are to exercise this power in accordance with the rules of law and procedure laid down in the statute in question providing, inter alia, for substantive rights, that is, rights in relation to property, and also accordance of opportunity to the parties concerned to be heard on the points in dispute.

In such context the provision in Rule 6(2) authorizing the <ORG> to make such enquiries as it may think fit before making an award or order-and there is even no such provision in regard to the Appellate Officer-does not really affect the position. The <ORG> and the Appellate Officer, therefore, exercise the 'judicial power' of the <ORG> within the meaning ascribed to the said expression by <NAME>, C. J., in 'HUDDARD PARKER & CO. v. <NAME>', '(1909) 8 C L R 330 at p. 357 and quoted with approval by <ORG> in 'SHELL CO. OF AUSTRALIA v. <ORG>', '(1931) A C 275 at pp. 295 to 296 and by <ORG> in 'BHARAT BANK'S CASE', (1950 SCR 459) already cited.

They thus perform judicial functions and as already indicated, Rule 6(2) does not, in the context noticed above, rob the proceedings before the <ORG> of their judicial character- and are at least quasi-judicial bodies upon tests laid down in 'COOPER v. WILSON', (1937) 2 K B 309 at p. 340, cited with approval in 'BHARAT BANK'S CASE'. They are not <ORG>s, strictly so called,-they may not also be, strictly speaking, judicial bodies as they are out of the hierarchy of the ordinary judicial system and may not possess, under all circumstances, all the ingredients essential for the purpose under the authority of 'COOPER'S CASE',-but, nevertheless, they have unquestionably all the recognized attributes of quasi-judicial bodies (vide the authorities already cited) and are as such amenable to the jurisdiction of this <ORG> under Article 227.

33. The only question that now remains is as to whether, in the instant case before us, circumstances exist for the exercise of our constitutional powers under Article 227. This aspect of the matter has been fully discussed in the judgment of my learned brother and I need only say that, on the materials before us, it is abundantly clear that the present case is pre-eminently one for interference under that Article. I, therefore, agree with my Lord in holding that the order of the Appellate Officer against which this rule has been obtained cannot stand. That order must, accordingly, be set aside and, as I agree also that, in the circumstances of this case, a remand is necessary for a just and proper decision of the disputes between the parties in accordance with law. I concur in the order proposed by my learned brother.


PETITIONER: <NAME> Vs. RESPONDENT: OM PRAKASH AND ANR. DATE OF JUDGMENT02/04/1980 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SEN, A.P. (J) CITATION: 1980 AIR 1664 1980 SCR (3) 325 1980 SCC (3) 610 CITATOR INFO : R 1983 SC1010 (15) RF 1984 SC1392 (9) ACT: Delhi Rent Control Act , 1958, Sections 15(7) scope of Striking of defence for non-payment of arrears of rent, <ORG>'s duty. Delhi Rent Control Act , 1958-Appeal against order striking out defence-Correct section applicable is section 38 and not section 25B , of the Delhi Rent Control Act . HEADNOTE: The appellant tenant, a working woman engaged an advocate to appear on her behalf and take proper steps to protect her interests, as she had a difficulty in appearing in <ORG> for every hearing. She paid all the arrears of rent by cheque or in cash to her advocate who failed either to deposit the <ORG> or to pay to the landlord. The Rent Controller refused to look into this and struck off her defence under section 15(7) of the Delhi Rent Control Act, 1958. The appeal was dismissed as not maintainable in view of section 25B of tho Act. Hence the appeal by special leave. Allowing the appeal, the <ORG>. ^ HELD :1. Rent Control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own none and, if evicted, will be helpless. Even so, the legislature has provided some grounds for eviction, and the Delhi law contains an extreme provision for striking out together the defence of the tenant which means that even if he has excellent pleas to negative the landlord's claim the <ORG> will not hear him. Obviously, this is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why a discretion vested, not a mandate imposed in Section 15(7) of the Delhi Rent Control Act. [327 C-D] 2. If a socially informed perspective is adopted while construing the provision of Section 15(7) , then it will be plain that the Controller is armed with facultative power. He may, or may not strike out the tenant's defence. A Judicial discretion has built-in-self-restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power, that, in a court, striking out a 6 party's defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be failure to pay rent which, in the content, indicates willful failure, deliberate default or volitional non-performance. Secondly, the Section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical conse- quence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. A last resort cannot be converted into tho first resort a punitive direction of court 326 cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter-of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power. [327 F-H, 328 A-B] 3. The exercise of the power of striking out of the defence under section 15(7) is not imperative whenever the tenant fails to deposit or pay any amount as required by section 15 . The provisions contained in s. 15(7) of the Act are directory and not mandatory. It cannot be disputed that s.15(7) is a penal provision and given to the Controller discretionary power in the matter of striking out of the defence, and that in appropriate cases, the Controller may refuse to visit upon the tenant the penalty of non-payment or non-deposit. The effect of striking out of the defence under s.15(7) is that the tenant is deprived of the protection given by s.14 and, therefore, the powers under s.15(7) of the Act must be exercised with due circumspection. Section 15(7) of the Act is not couched in mandatory language. It uses the word "may". The difference in the language of Section 15(7) with that of Section 13(5) of the repealed Act is significant and indicates that in the present Act there is a deliberate modification of law in favour of the tenant. Under Section 15(7) of the Act, it is in the liberal discretion of the Rent Controller, whether or not to strike out the defence. The <ORG> should be aware of the milieu before exercise of this extreme power. [328 B-D, 329 A-B] In the instant case, the tenant did all she could by paying to the advocate the sums regularly but the latter betrayed her and perhaps helped himself. To trust one's advocate is not to sin deliberately. She was innocent but her advocate was innocent. No party can be punished because her advocate behaved unprofessionally. The Rent Controller should have controlled himself by a plain look at the eloquent facts and not let down the helpless woman who in good faith believed in the basic ethic of a noble profession. She did not fail to pay or deposit and, in any view, no case for punitive exercise of discretion has been made out. The conclusion necessarily follows that the striking out of the defence was not legal and the appellant should have been given an opportunity to contest the claim of the landlord for her eviction. A sensitized judicial appreciation was missing and unfortunately, the High <ORG> did not closely look at this facet of the issue. [329E-H] V. K. Varma v. Radhey Shyam, A.I.R. 1964 S.C. 1370, referred to. 4. An order striking out the defence is appealable under s.38. So this order is appealable. The reliance on s. 25B(8) to negative an appeal is inept because this is not an order under that special section but one under s. 15 . Moreover, s.25B(10) preserves the procedure except to the extent contra-indicated in s.25B. Negation of a right of appeal follows from s.25B(8) only if the order for recovery is made 'in accordance with the procedure specified in this Section' (i.e. 25B). Here the dispossession was not ordered under the special provision in s.25B but under s.15. Nor can the theory of merger salvage the order because the legality of the eviction order depends on the legality of the order under s.15(7). Once that order is found illegal what follows upon that cannot be sustained. [330 A-C] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1445 of 1979.

Appeal by Special Leave from the Judgment and order dated 17th October, 1978 of <ORG> in Revision Petition No. 689 of 1978.

Mrs. <NAME>, <NAME>, <NAME> and Miss <NAME> for the Appellant.

<NAME>, for the Respondents.

The following Judgment of the <ORG> was delivered by <NAME>, J.-A short but interesting point affecting the validity and propriety of an order under s. 15(7) of the Delhi Rent Control Act, 1958 (for short, the Act), has been raised by counsel for the appellant. The decision of this question is of importance and we regard it as necessary to clarify the position so that the error committed by the trial judge may not be repeated.

Rent Control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own none and if evicted, will be helpless. Even so, the legislature has provided some grounds for eviction, and the Delhi law contains an extreme provision for striking out altogether the defence of the tenant which means that even if he has excellent pleas to negative the landlord's claim the court will not hear him. Obviously, this is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why a discretion is vested, not a mandate imposed. Section 15(7) reads thus:

"If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application."

We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facultative power. He may, or not strike out the tenant's defence. A judicial discretion has built-in-self-restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a court, striking out a party's defence is an exceptional step, not a routine visitation of a punitive esteem following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the context, indicates willful failure, deliberate default or volitional non-performance. Secondly, the Section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be converted into the first resort; a punitive direction of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty under. J lying the power.

There is no indication whatsoever in the Act to show that the exercise of the power of striking out of the defence under s. 15(7) was imperative whenever the tenant failed to deposit or pay any amount as required by s. 15 . The provisions contained in s. 15(7) of the Act are directory and not mandatory. It cannot be disputed that s. 15(7) is a penal provision and gives to the Controller discretionary power in the matter of striking out of the defence, and that in appropriate cases, the Controller may refuse to visit upon the tenant the penalty of non payment or non-deposit. The effect of striking out of the defence under s. 15(7) is that the tenant is deprived of the protection given by s. 14 and, therefore, the powers under s. 15(7) of the Act must be exercised with due circumspection.

It will be noted that s. 15(7) of tho Act is not couched in mandatory language. It uses the word 'may'. The difference in the language of s. 15(7) with that of s. 13(5) of the repealed Act is significant and indicates that in the present Act there is a deliberate modification of law in favour of the tenant. In this connection, it would be pertinent to refer to the observations of the <ORG> in <CITATION> .(1) In that case, the <ORG> compared s. 13(5) of the Delhi Rent Control Act , 1952 which laid down that on the failure of a tenant to deposit the arrears of rent within the prescribed time, "the ' court shall order the defence against ejectment to be struck out." with s. 15(7) of the Delhi Rent Control Act, 1958 which substitutes 'may' and observed:

"The change of the words from "The <ORG> shall order the defence against ejectment to be struck out" to the words "the Controller may order the defence against eviction to be struck out" is clearly deliberate modification in law in favour of the tenant. Under the old Act the <ORG> had no option but to strike out the defence if the failure to pay or deposit the rent is proved; under the new Act the Controller who takes the place of the <ORG> has a discretion in the matter, so that that in proper cases he may refuse to strike out the defence."

These observations leave no doubt that under s. 15(7) of the Act, it is in the liberal discretion of the Rent Controller whether or not to strike out the defence.

We stress the need for the <ORG> to be aware of the milieu before exercise of this extreme power because the present case is illustrative of its erroneous use.

The facts in this case cry for intervention, if one may say so. The appellant is a working woman who has to get to office and be there between 9.00 a.m. to 5.00 p.m. Naturally, she has a difficulty in appearing in court for every hearing and so she prudently engaged an advocate to appear on her behalf and take proper steps to protect her interests. It is common ground that all the arrears of rent had been paid by her by cheque or in cash to her advocate. It also transpires that the amounts received by cheque or in cash by the advocate were not deposited in court or paid to the landlord. It is further seen that when the tenant found that the amounts were not paid to the landlord by her advocate, she made a complaint to <ORG> and the matter is pending inquiry. From these circumstances, we are inclined to conclude-indeed, that is the only reasonable conclusion in the circumstances-that the tenant has not failed to pay and, in any case, the exercise of judicial discretion must persuade the court not to strike out the defence of the tenant but give her fresh opportunity to make deposit of the entire arrears due. In the present case the deposit has eventually been made in this Court when it directed such deposit to be made.

The tenant did all she could by paying to the advocate the sums regularly but the latter betrayed her and perhaps helped himself. To trust one's advocate is not to sin deliberately. She was innocent but her advocate was innocent. No party can be punished because her advocate behaved unprofessionally. The Rent Controller should have controlled himself by a plain look at the eloquent facts and not let down the helpless woman who in good faith believed in the basic ethic of a noble profession. She did not fail to pay or deposit and, in any view, no case for punitive exercise of discretion has been made out. The conclusion necessarily follows that the striking out of the defence was not legal and the appellant should have been given an opportunity to contest the claim of the landlord for her eviction. A sensitized judicial appreciation was missing and, unfortunately, <ORG> did not closely look at this facet of the issue. On the other hand, the appeal was dismissed as not maintainable in view of s. 25B .

An order striking out the defence is appealable under s. 38. So this order is appealable. The reliance on s. 25B(8) to negative an appeal is inept because this is not an order under that special section but one under s. 15 . Moreover, s. 25B(10) preserves the procedure except to the extent contra-indicated in s. 25B . Negation of the right of appeal follows from s. 25B(8) only if the order for recovery is made 'in accordance with the procedure specified in this section' (i.e. 25B). Here the dispossession was not ordered under the special provision in s. 25B but under s. 15 . Nor can the theory of merger salvage ' the order because the legality of the eviction order depends on the legality of the order under s. 15(7) . Once that order is found illegal what follows upon that cannot be sustained.

In the view we take of the effect of s. 15(7) we allow the appeal in exercise of our jurisdiction under Article 136 and direct the case to go back to the Rent Controller. Having regard to the fact that the landlord has not been able to make out his case of bona fide requirement for long because of the pendency of these proceedings, we direct the Rent Controller to dispose of the petition for eviction expeditiously and, as far, as possible, within four months from today.

Any further arrears, if accrued, will be paid under the directions of the Rent Controller on or before a date fixed by him. The order for eviction passed in this case after striking out the defence must fail 13: in view of our holding that the order striking out the defence itself is , illegal. Necessarily, the orders of the Rent Controller and of their <ORG> must be and are hereby set aside. The parties will appear before the Rent Controller on 16th April, 1980. There will be no order as to costs. S.R. Appeal allowed.


PETITIONER: MANGILAL Vs. RESPONDENT: SUGANCHAND RATHI DATE OF JUDGMENT: 24/10/1963 BENCH: <NAME>, J.R. BENCH: <NAME>, J.R. GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA CITATION: 1965 AIR 101 1964 SCR (5) 239 CITATOR INFO : F 1967 SC1419 (5) RF 1972 SC 819 (11) RF 1974 SC 818 (15,26) D 1976 SC 588 (8) D 1976 SC 869 (6,7) D 1978 SC1518 (8,9,14,17) O 1979 SC1745 (13,17) D 1988 SC1470 (10) R 1992 SC 96 (14) ACT: Madhya Pradesh Accommodation Control Act, 1955 (23 of 1955), s. 4(a)-Notice-Whether tenant should in arrears on the date of suit-Acceptance of arrears-If right under notice waived- Transfer of Property Act , 1882 , s. 106 . HEADNOTE: The defendant was a tenant of the plaintiffs. The defendant was in arrears of rent for one year to the extent of Rs. 1,020. On April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs. 1,020 within one month from the date of service of notice, failing which suit for ejectment would be filed. This notice was received by the defendant on April 16, 1959. On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs. 1,320. This amount consisted of the rental arrears as well as the rent due right up to June 30, 1959. The plaintiffs accepted the cheque and cashed it and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July. The defendant did not vacate the premises. Then the plaintiffs filed a suit to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him. From the undisputed facts it was clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl. (a) of s. 4 of the Madhya Pradesh Accommodation Control Act, 1953. Held:(i) Though the notice dated April 11, 1959 could be construed to be composite notice under s. 4(a) of the accommodation Act and s. 106 of the Transfer of Property Act it was ineffective 240 under s. 106 of the Transfer of Property Act because it was not a notice of 15 clear days. In the present case, the defendant had only 14 clear days' notice. <CITATION> . 28 Cal. 118 and <NAME> v. <NAME>, A.I.R. 1915 Cal. 313, approved. <CITATION> . 45 I.A. 222, dis- tinguished. (ii)The suit was actually based upon the notice dated July 9, 1959 which gave more than 15 days' clear notice to the defendant to vacate the premises. This notice was a valid notice under s. 106 of the Transfer of Property Act. (iii)The contention that a suit under cl. (a) of s. 4 of the Act is not maintainable unless a tenant is in arrears on the date of the suit, cannot be sustained. If this contention had to be accepted it would be virtually rewriting the section by saying "that the tenant was in arrears of rent at the date of suit" in place of that the "tenant has failed to make payment etc." It is certainly not open to a court to usurp the functions of a legislature. Nor again, is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords. (iv)The ground set out in cl. (a) of s. 4 need not be shown by the landlord to exist at the date of institution of the suit. All that is necessary for him to establish is that the tenant was in fact in arrears, that he was given one month's notice to pay up the arrears and that in spite of this he failed to pay these arrears within one month of service of notice on him. (v)The effect of cl. (a) of s. 4 is merely to remove the bar created by the opening words of s. 4 on the right which a landlord has under s. 106 of the Transfer of Property Act to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy. The character of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by s. 106 will be exercisable only if one of the grounds set out in s. 4 of the Accommodation Act is shown to exist. (vi)By cashing the cheque for Rs. 1,320 the plaintiffs did not waive all rights which accrued to them under the notice dated April 11, 1959. No right under s. 106 of the Transfer of Property Act had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and, therefore, no question of waiver with respect to that part of the notice arises. So far as the right accruing under s. 4(a) of the Accommodation Act is concerned, the defendant having been under liability to pay rent even after the giving of notice the acceptance of the rent by the plaintiffs would not by itself of operate as waiver. 241 JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 307 of 1963. Appeal by special leave from the judgment and decree- dated September 27, 1962, of <ORG> in Second Appeal No. 158 of 1962.

<NAME>, Additional Solicitor-General of India, <NAME>, <NAME> and <NAME> for the appellant.

<NAME>, <NAME> and <NAME>, for the respondents.

October 24, 1963. The Judgment of the Court was delivered by <NAME> is an appeal by special leave against the judgment of <ORG> dismissing the defendant's appeal in which he had challenged the decision of the courts below ordering his ejectment from certain premises which are in his occupation as the tenant of the plaintiffs.

It is common ground that the defendant was a tenant of the plaintiffs and the rent of the premises in his occupation was Rs. 110 p.m. It is not disputed that the defendant was in arrears of rent from April 1, 1958 to March 31, 1959 to the extent of Rs. 1,020. On April II, 1959 the plaintiffs served a notice on the defendant bringing to his notice the fact of his being in arrears of rent for 12 months and requiring him to remit to them Rs. 1,020 within one month from the date of service of notice and stating that on his failure to do so, a suit for ejectment would be filed against him. In addition to this the notice called upon the defendant to vacate the premises by April 30, 1959 upon two grounds:

(1) that the premises were required by the plaintiffs "genuinely for business"; and (2) that the defendant had sublet a portion of the premises to two persons without the permission of the plaintiffs and without having any right to sublet the premises.

This notice was received by the defendant on April 16, 1959. On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs. 1,320. It may be mentioned that this amount consisted of the rental arrears as well as the rent due right up to June 30, 1959. The plaintiffs accepted the cheque and cashed it on July 4, 1959 and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July. In their notice the plaintiffs also stated that they had cashed the cheque under protest. The defendant did not vacate the premises and, therefore, the present suit for eviction was instituted on August 14, 1959. The plaintiffs claim for eviction on the grounds that the premises were required by them bona fide for the purpose of their business and that the defendant had illegally let them out was negatived by the courts below and, therefore, must be left out of question. The only question is whether the plaintiffs are entitled to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him. The tenancy being from month to month it was open to the plaintiffs to terminate it by giving 15 days' notice expiring at the end of the month of the tenancy as provided for in s. 106 of the Transfer of Property Act, 1882. The premises are, however, situated in Jabalpur in which the Madhya Pradesh Accommodation Control Act,1955 (No. 23 of 1955) (herein referred as the Accommodation Act ) is in force. Section 4 of the Act provides that no suit shall be filed. in any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds set out in that section. One of the grounds set out in that section is that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord. It is because of this provision that before the plaintiffs could succeed it was necessary for them to establish that the defendant had failed to pay rental arrears within one month of the receipt by him of a notice of demand. From the undisputed facts it is clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl. (a) of s. 4 . According to the learned Additional Solicitor-General, however, in spite of these circumstances the plaintiffs' suit could not have been decreed because:

(1) the notice of April 11, 1959 was invalid for the purpose of s. 106 of the Transfer of Property Act inasmuch as the defendant did not have 15 clear days notice expiring by the end of the month of tenancy;

(2) that the notice as well as the default were both waived by the plaintiffs by reason of-

(a) acceptance of the cheque for Rs. 1,320, which included rent up to June 30, 1959;

(b) giving a fresh notice on July 9, 1959 and

(c) filing of a suit on August 14, 1959 in which reliance was placed only on the second notice.

(3) that the second notice was not valid with reference to the Transfer of Property Act and the Accommodation Act ; and (4) that there was no cause of action for the suit on August 14, 1959 under s. 5 of the Accommodation Act because no rent was in arrears on that date.

We shall deal with the points in the order in which he has mentioned them.

The learned Additional Solicitor-General contends-and rightly-that the provisions of s. 4 of the Accommodation Act are in addition to those of the Transfer of Property Act and that before a tenant can be evicted by a landlord he must comply both with the provisions of s. 106 of the Transfer of Property Act and those of s. 4 of the Accommodation Act. The Accommodation Act does not in any way abrogate Ch. V of the Transfer of Property Act which deals with leases of immovable property. The requirement of s. 106 of the Transfer of Property Act is that a lease from month to month can be terminated only after giving fifteen days' notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord. Such a notice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant. Section 106 of the Transfer of Property Act does not provide for the satisfaction of any additional requirements. But then, s. 4 of the Accommodation Act steps in and provides that unless one of the several grounds set out therein is established or exists, the landlord cannot evict the tenant. Here the contention is that the ground set out by cl. (a) of that section does exist because the defendant was in arrears of rent for a period of one year and despite service upon him of a notice to pay the amount within one month of receipt thereof, he has failed to pay it. Now, the learned Additional Solicitor-General states that the notice of April, 1959 may be a good notice for the purposes of s. 4(a) of the Accommodation Act but it is not a good notice for the purposes of Is. 106 of the Transfer of Property Act for two reasons: in the first place it does not purport to determine the tenancy and in the second place the notice falls short of the period of 15 days specified in s. 106 of the Transfer of Property Act. <ORG> has, however, treated this as a composite notice under s. 4(a) of the Accommodation Act and s. 106 of the Transfer of Property Act and in our opinion rightly. It has to be observed that the plaintiffs, after requiring the defendant to pay the rental arrears due up to the end of March, 1959 within one month from the date of service of the notice, Proceeded to say "failing which suit for ejectment will be filed". These recitals clearly indicate the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both the Acts. Even so, the question would arise whether the notice was ineffective under s. 106 of the Transfer of Property Act because it was not a notice of 15 clear days. It was held by <ORG> in <CITATION> (1) that the notice contemplated by s. 106 must be notice of 15 clear days. In calculating the 15 days' notice the day on which the notice is served is excluded and even if the day on which it expires is taken into account it will be clear that the defendant had only 14 clear days' notice. Therefore, if the view taken in the aforesaid case is correct the period of notice falls short of that provided in s. 1.06 of the Transfer of Property Act by one day. The correctness of the aforesaid decision was not questioned by the same <ORG> in <NAME> v. <NAME>). No decision was brought to our notice in which a contrary view has been expressed. But Mr. <NAME> who appears for the plaintiffs, contends that a notice to quit should be liberally construed. In this connection he referred us to a decision in <CITATION> (3) In that case <ORG> has observed at p. 225:

................ that notices to quite, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and, circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed at res magis valeat quam pereat."

(1)ILR 28 Cal.118. (2) A.I.R. 1915 Cal. 313, (3) 45 I.A. 222.

The decision really is of no assistance in this case because there the defect which was not said to invalidate the notice appertained to the description of the demised premises and <ORG> held that the recipient of the notice would be quite conversant with the actual description and could know what the description stood for. Here the question is entirely different and that is whether the landlord had given the minimum period contemplated by s. 106 of the Transfer of Property Act to the tenant within which to vacate the premises. This provision is evidently intended to confer a facility on the tenant and must, therefore, be so construed as to enable him to have the fullest benefit of that facility. It seems to us that a liberal construction of a notice which would deprive the tenant of the facility of having the benefit of the minimum period of 15 days within which to vacate is not permissible. We, therefore, approve of the view taken in <NAME>'s case(1) and hold that the notice dated April 11, 1959 was ineffective as it does not fulfil the requirements of s. 106 of the Transfer of Property Act.

Mr. <NAME> for the plaintiffs, however, points out that a notice complying with the requirements of s. 106 was actually given by the plaintiffs to the defendant on July 9, 1959 and no fault could be found with it since it in fact gave more than 15 days' clear notice to the defendant to vacate the premises. He further points out that the suit was actually based upon this notice and, therefore, was competently instituted. We think the contention to be correct.

This brings us to the second and the fourth points raised by the learned Additional Solicitor-General which we will deal with together. His contention is that there were actually no arrears on the date of suit and that unless a tenant is in arrears on the date of suit he is not liable to be evicted because of the provisions of s. 4(a) of the Accommodation Act. The opening words of s. 4 , cl. (a) are as follows:

(1) I.L.R. 28 Cal. 118.

"No suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds:-

(a) that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord;"

This provision clearly speaks of a tenant having failed to make payment to the landlord of the arrears of rent due from him within the time prescribed in that clause. It does not mean that the ground on which eviction is claimed must subsist till the date of suit. It is well to bear in mind that this Provision is quite different from the analogous provisions of the Bombay Rent, Hotel and Lodging House Rates (Control) Act, 1947, or the West Bengal Premises Tenancy Act, 1956. The protection to tenants given by these Acts is more extensive and a tenant in arrears of rent is given time to pay the arrears even after the institution of the suit. Indeed, in order to bring the Madhya Pradesh law in line with these Acts the Accommodation Act has been substituted by the M.P. Accommodation Control Act, 1961 (Act 41 of 1961). Clause (a) of s. 12 of that Act entitles a landlord to bring a suit for the eviction of the tenant where the latter has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner. Sub-section (3) of that section provides that no order for the eviction of a tenant could be made on the grounds specified in cl. (a) of Sub-s. (1) if the tenant makes payment of deposit as required by s. 13 . Sub-section (1) of s. 25 gives a right to the tenant to make ail application within certain time for depositing the rental arrears in court.The scheme of the new Act is thus a substantial departure in this respect from that of s. 4 of the 1955 Act. The learned Additional Solicitor-General, however, says that if we look to some of the other grounds specified in s. 4 and to the provisions of ss. 16 and 17 of the new Act it would appear that when a suit is instituted at the instance of the landlord for the eviction of the tenant the latter must be in arrears on the date of the institution of the suit. In this connection he refers us to the provisions of cls. (g),(h), (j) and (k) of s.4 and contends that the grounds referred to in those clauses must necessarily continue to exist till the dates the institution of the suit and that- cl. (a) should be read as containing a similar condition. Clauses (g) and (h) deal with cases where the landlord, broadly speaking., requires the accommodation for his own residence or for his own business. Clause (j) deals with a case where a tenant had given written notice to quit and in consequence of that notice the landlord has contracted to sell or let the accommodation or has taken any other step as a result of which his interests would seriously suffer if he is not put in possession of that accommodation. Clause (k ) deals with accommodation which was let to the tenant for use as a residence by reason of his being in the service of the landlord and the tenant has ceased, whether before or after the commencement of the Act. to be in such service. It is not necessary for us to decide in this case whether the grounds referred to in these clauses must necessarily continue to exist on the date of suit. It is sufficient to say that the language of cl. (a) must be given its natural meaning and that there is no warrant for modifying that language because while dealing with other grounds set out in other clauses, the legislature has used different language. If we were to uphold the contention of the learned Additional Solicitor-General we would be virtually rewriting the section by saying "that the tenant was in arrears of rent at the date of suit" in place of that the "tenant has failed to, make payment etc." It is certainly not open to a court to usurp the functions of a legislature. Nor again, is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords. As far as ss. 16 and 17 are concerned, they are of no assistance to the defendant. It is not necessary for us to reproduce their provisions; but it is sufficient to say that they were intended to give a limited retrospective operation to the provisions of the new s. 4 . We have no doubt, therefore, that the ground set out in cl. (a) of s. 4 need not be shown by the landlord to exist at the date of institution of the suit. All that is necessary for him to establish is that the tenant was in fact in. arrears, that he was given one month's notice to pay up the arrears and that in spite of this he failed to pay those arrears within one month of service of notice on him.

It is said that such an interpretation will lead to this result that the landlord who had served notice upon a tenant under cl. (a) of s. 4 and in compliance with which the tenant had failed to pay the arrears within one month of the service of notice, may continue the tenancy of the defaulting tenant, go on receiving lent from him and then at his sweet will may terminate the tenancy. The intention to give such a right to the landlord cannot reasonably, accord- ing to the learned Additional Solicitor-General, be attributed to the legislature. Theoretically that is possible; but the argument based upon it is farfetched. The landlord who wants to evict a tenant and, therefore, avails himself of the ground furnished by cl. (a) of s. 4 would not wait for years to file a suit against his defaulting tenant. It seems to us that in furnishing the ground to the landlord the legislature intended to give only a limited protection to the tenant or to put it slightly differently, the legislature intended to give protection only to a tenant who was diligent and regular enough in the matter of payment of rent. That is all. Indeed, while it is open to a legislature to give wide protection to ever defaulting tenants, it does not follow from it that whenever it gives protection it must be deemed to have given him the protection of the widest amplitude.

Then it is said that such an interpretation will deprive a tenant, for whose benefit s. 4 was enacted, of the benefit of s. 114 of the Transfer of Property Act which provides for relief against forfeiture for non-payment of rent. What is forfeiture is set out in s. 111 (g) of the Transfer of Property Act , which runs thus:

"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 person 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;"

The effect of cl. (a) of s. 4 is merely to remove the bar created by the opening words of s. 4 on the right which a landlord has under s. 106 of the Transfer of Property Act to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy. It does not convert a periodic tenancy into one of fixed or indefinite duration nor insert therein a clause of re-entry on the ground of nonpayment of rent. The character of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by s. 106 will be exercisable only if one of the grounds set out in s. 4 of the Accommodation Act is shown to exist.

The next question is whether, as contended by the learned Additional Solicitor-General, the default made by the defendant in failing to pay the arrears within one month of the receipt of the notice dated April 11, 1959, can be said to have been waived by the plaintiffs. It is no doubt true that by cashing the cheque for Rs. 1,320 on July 4, 1959 the plaintiffs received not merely the arrears of rent up to March, 1959 but also rent upto June 30, 1959. There is no substance in the plea made on their behalf that they had received the amount under protest. In the first place this is not a case to which illustration (a) to s. 113 of the Transfer of Property Act which says that acceptance of rent falling due after the expiry of a notice to quit amounts to waiver of the notice applies. Then again when the plaintiffs cashed the cheque they had not filed a suit on the basis of the notice of April 11, 1959. Merely saying that they accepted the money under protest is, therefore, of no avail to them. Even so, it is difficult to infer, merely from the acceptance of the payment, a, waiver of the right which had accrued to them under s. 4(a) of the Act in consequence of the default made by the defendant in paying arrears of rent. The reason is quite simple. The tenancy, as was indeed argued by the learned Additional Solicitor- General, hah not be-en validly terminated by the notice of April 11 , 1959 and therefore the relationship of landlord and tenant continued. Consequently the plaintiffs were within their right in accepting the rent and cannot be fastened with the intention to waive the default just because of this action since the defendant was, by virtue of the Accomodation Act entitled to remain in possession as tenant and liable to pay rent. The learned Additional Solicitor-General, however, faintly contended that if the notice of April 11, 1959 could also be construed as being intended to be notice under s. 106 of the Transfer of Property Act then even though it was ineffective the acceptance of rent by the plaintiffs on July 4, 1959 amounted to a waiver of the right accruing from the notice. As we have already indicated, so far as the suit is concerned, it is based upon the notice of July 9, 1959, that is to say, the eviction of the defendant is claimed on the basis of a notice requiring him to quit by the end of July, 1959. The right accruing to the plaintiffs to institute the suit on the basis of this notice has not been waived at all and the receipt by them of rent prior to this date does not by itself terminate the right accruing to them under the notice dated July 9, 1959. It may be that if the notice of April 11 , 1959 is construed as a composite notice, that is, one contemplated by cl. (a) of s. 4 as also one under s. 106 of the Transfer of Property Act, acceptance of the rent could, along with other circumstances, have led to the inference of waiver of the right flowing from the notice under s. 106 of the Transfer of Property Act. But it is difficult to see how such a construction of the notice can at all support a plea of waiver of the right accruing from cl. (a) of s. 4 .. As already pointed out, the notice of April 11, 1959 in so far as it purported to be under s. 106 of the Transfer of Property Act was ineffective and, therefore, the relationship of landlord and tenant continued between the plaintiffs and the defendant. Accepting rent under such circumstances from the defendant cannot justify the inference of waiver of quite a different right and that is to take advantage of the statutory right under s. 4 of the Accommodation Act accruing by reason of the default made in the payment of rental arrears. Indeed, the notice of April 11, 1959 as it stands, could not by itself have furnished the plaintiffs with the right to institute a suit. Till they acquired that right, not only were they entitled to accept the rent which accrued due from month to month but the defendant was himself liable to pay the rent whenever it fell due till the relationship of landlord and tenant was put an end to. Therefore, from the sole circumstance of acceptance of rent after April 11, 1959 waiver cannot at all be inferred. We are, therefore, unable to accept the argument of the learned Additional Solicitor-General that by cashing the cheque for Rs. 1,320 the plaintiffs waived all rights which accrued to them under the notice dated April 11, 1959. As we have already said, no right under s. 106 of the Transfer of Property Act had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and, therefore, no question of waiver with respect to that part of the notice arises. So far as the right accruing under s. 4 (a) of the Accommodation Act is concerned, the defendant having been under liability to pay rent even after the giving of notice the acceptance of the rent by the plaintiffs would not by itself operate as waiver.

As regards the last point, we have in fact dealt with it already. What was contended was that the notice of April 11, 1959 was not a valid notice with reference to both the laws, that is, the Transfer of Property Act and the Accommodation Act . We have pointed out that though the notice could be construed to be composite notice it was ineffective in so far as it purports to be under s. 106 of the Transfer of Property Act. It was not suggested that in so far as it was a notice under the Accommodation Act it was invalid. There is, therefore, nothing more to be said about it.

For the foregoing reasons we uphold the decree of <ORG> and dismiss the appeal with costs.

Appeal dismissed.