09 December 1975
Supreme Court


Case number: Appeal Civil 1295 of 1975








CITATION:  1976 AIR  588            1976 SCR  (2) 906  1976 SCC  (2) 103  CITATOR INFO :  D          1978 SC1518  (12,13,17)  O          1979 SC1745  (16)  RF         1980 SC1214  (12)

ACT:      Transfer of  Property  Act-Secs.  106  and  111(a)  and 111(g)-Eviction  under  Rent  Control  Law-Whether  de  hors Transfer of  Property Act-Rules  of Justice  equity and good conscience-Whether institution of legal proceedings operates as  determination   of  lease-Art.  133  of  Constitution-If certificate limited  to  a  particular  point-Whether  other points can  be argued-Whether English concepts to be blindly followed.

HEADNOTE:      The  respondent   landlord  let  out  the  building  in question to  the appellant tenant in the year 1954, when the Transfer of  Property Act  was not applicable to Delhi where the property  is situated.  The Transfer of Property Act was made applicable  to Delhi  in the  year 1962.  In 1967,  the respondent filed  a suit  for eviction against the appellant without  terminating  the  tenancy  under  the  Transfer  of Property Act  on the  grounds of unauthorised subletting and acquisition of  alternative accommodation  by the  tenant. A decree for  eviction was passed by the Rent Controller which was affirmed by the Appellate Tribunal.      In the  High Court  it was  contended by  the appellant that  neither  notice  to  quit  nor  notice  of  forfeiture determining  the  tenancy  was  given  by  the  landlord  as required by sections 106 and 111 of the Transfer of Property Act. The  respondent contended that the lease had expired by efflux  of   time  under   section  111(a)   and  no  notice terminating the tenancy was necessary and that forfeiture of the tenancy  caused by  the subletting contrary to the terms of the  agreement can  be availed of by the landlord even in the absence  of a  notice as contemplated by section 111(g). The High Court dismissed the petition filed by the appellant but granted  a certificate  of  fitness  under  Article  133 restricting it  to one  ground urged  before the High Court. The respondent raised a preliminary objection that since the certificate was  granted only  on one  point  the  appellant



could not be permitted to make any other submissions.      The appellant contended that the lease is one where the time is not limited and, therefore, is terminable only by 15 days notice  as required  by  section  106  of  Transfer  of Property Act.      The respondent contended that the lease was for a fixed period and  expired by  efflux of time. In any evnt a notice in  writing   is  not  necessary  to  terminate  the  lease. Institution of legal proceedings serves that purpose. ^      HELD: (1)  Once  a  certificate  of  fitness  has  been granted under Article 133, the appeal, in all its amplitude, is before  the Court  and every  point may  be urged  by the appellant provided  this Court  permits it  having regard to the  circumstances.   It  is  however,  within  the  court’s discretion not to allow a new point to be taken up. [909D-E]      (2) The  scheme of  the Rent  Control Law,  is  to  put further fetters  on landlords  seeking eviction where in the absence of  such  acute  barriers  the  landlords  would  be entitled to  ejectment. Even  where under  a particular Rent Control Statute  the landlord makes out grounds for eviction he can  institute proceedings in this behalf only if de hors the said  grounds he  has cause of action under the Transfer of Property  Act. The  landlord cannot  secure an  order for eviction without  first establishing  that  he  has  validly determined the  lease under  the transfer  of Property  Act. [909G-H,911C]      (3) A lease merely stating that it is for a period less than one  year is  ex-facie for  an indefinite period and as such cannot expire by efflux of time. 907 Nor are  we convinced  that the  acceptance of  rent for the period of  11 years does not amount assenting to the holding over of the tenancy by the landlord. [911E-F]      (4) The  Rent Act contemplates no elaborate proceedings but filing  out of the particulars in a proforma which takes the place  of a  plaint. No  specific averment of forfeiture and consequent  determination of  the lease  is found in the petition. The  question arises  whether a  written notice of forfeiture for  the breach  of the condition of the lease is obligatory in  terms of  section 111(g)  or whether  written notice of  forfeiture can be dispensed with as being no part of the equity or justice but a technical or formal statutory requirement. Before  the amendment  of Transfer  of Property Act in  1929 all  that  was  necessary  for  the  lessor  to determine the  demise on  forfeiture  was  to  do  some  act showing his  intention to  determine the  lease. The rule of English Law’before the enactment of the law of Property Act, 1925, appears  to be that a suit for ejectment is equivalent to a  re-entry. The appellant did not urge in the High Court that the  Transfer of Property Act was applicable in its own force. We  decline our  discretion to allow the appellant to travel into  the new statutory territory of section 111 (g). [911G-H, 913A, D-E, 916C]      (5) In  India and  in  other  colonies  throughout  the Imperial Era  a tacit assumption had persuaded the courts to embrace English  Law (the civilizing mission of the masters) as justice,  equity and good conscience. Unfortunately, even after liberation,  this neo  colonial jurisprudence  was not shaken off.  Free India  has to  find its  conscience in our rugged realities  and no  more in  alien legal  thought.  So viewed, the  basic question is what is the essence of equity in the  matter of determination of a lease on the grounds of forfeiture  caused   by  the  breach  of  a  condition.  The substance of  the matter-the  justice  of  the  situation-is



whether a  condition in  the lease  has  been  breached  and whether the lessor has by some overt act brought home to the lessee his  election to eject on the strength of the breach. The touchstone  is simply  whether the formal requirement of the law  is part of what is necessarily just and reasonable. In this perspective the conclusion is clear that a notice in writing formally  determining the  tenancy is  not a rule of justice or  cannon of commonsense. Realism married to equity being the  true test, we are persuaded that pre-amending Act provision of  section 111 (g) is in consonance with justice. The mere  institution of  the legal  proceeding for eviction fulfills the  requirements of  law for  determination of the lease. The  conscience of  the Court  needs nothing more and nothing less.  The essential  principles, not  the technical rules, of the Transfer of Property Act form part of justice, equity and  good conscience.  [916D,  917A,  D,  E-F,919B-C, 920A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1297 of 1975.      From the  judgment and order/decree dated the 30th May, 1975 of the Delhi High Court in S.A.O. 43 of 1973.      A. K.  Sen, R. L. Kohli, S. K. Bagga, Mrs. S. Bagga and Miss Yash Bagga for the Appellant.      Y. S.  Chitaley, R.  P. Singh, R. K. Jain and M. Mudgal for Respondent No. 1.      The Judgment of the Court was delivered by      KRISHNA IYER,J.  This fifth deck appeal, by certificate under Art. 133 of the Constitution, stems from a humdrum but protected litigation  under the rent control law by a tenant who has  lost all  alone the  way. If we may prologise, this special law  hopefully set up a quasi-judicial machinery for summary trial  and speedy  disposal and  prescribed eviction save  upon  simple  grounds  safeguarding  the  security  of tenants of  buildings against being inequitably ejected. But this  very   case  discloses   the  chronic   distortion  in processual  justice,  caused  by  a  slow-motion  spiral  of appeals  and  plethora  of  technical  pleas  defeating  the statutory design. 908      The obvious  legislative policy  and  project  in  this class of  simplistic landlord-tenant  litigation  demands  a radically non-traditional  judicial  structuring  and  legal engineering, by-passing  sophistications and  formalisms and tier-upon-tier of  judicial reviews.  Both these imperatives are conspicuously absent in current rent control litigation- a dismal failure which the legislature will, we hope, awaken to rectify.  Post-audit of  socio-economic laws  in  action, with a  view to  over-see if  legal institutions  and  jural postulates   actually    achieve   legislatively    mandated objectives in  special classes of dispute-proceessing, makes for competent  and credible implementation of laws and saves the time of the higher courts and the money of the public at present consumed  exasperatingly but avoidably. The price of legislative   inaction    in   these    areas   is   popular disenchantment with laws and tribunals. Factual matrix      The appellant  is the  tenant of  a building  in  Delhi having been  inducted into  possession  by  the  respondent- landlord under  a letting  of May  19, 1954,  evidenced by a deed which  fixed the  term merely  as less  than a  year (a circumstance out  of which  a minor ripple of legal argument



has arisen).  At the  time of  the  lease  the  Transfer  of Property Act,  1882 (for  short, the  TP Act),  had not been extended to  Delhi although, later, on December 1, 1962, the said Act  was made applicable to this area. The landlord had been receiving  rent from the tenant until the time he filed a petition  for eviction (1967), the statute which regulated the right to eviction being the Delhi Rent Control Act, 1958 (59 of  1958)  (for  short,  the  Rent  Act).  The  eviction petition set out two grounds out of the many specified in s. 14 of  the Rent  Act,  viz.,unauthorized  sub-letting  of  a portion of  the premises  and possession,  by the tenant, of alternative accommodation.  Both these  grounds having  been made  out,  the  evictibility  under  the  Rent  Act  became inevitable. But,  in the  High Court,  the  appellant-tenant fell back  on certain defences grounded on ss.106 and 111 of the TP  Act on  the score  that no  notice to  quit had been given, nor  notice of  forfeiture, as  prescribed  by  those sections. There  is no  dispute that  neither notice to quit nor notice  of forfeiture  determining the  tenancy had been given by  the landlord.  The core  of the  controversy  thus turns on the need to comply with the requirements of ss. 106 and/or 111  of the TP Act and the fatal effect of failure in this behalf.  The landlord  seeks  to  break  through  these defences by  urging that  the lease has expired by efflux of time  limited   thereby  under   s.  111(a)  and  no  notice terminating the  tenancy under  s. 106 is needed and further that the  forfeiture of  the tenancy  caused by  sub-letting contrary to  the terms  of the deed of demise can be availed of by  the landlord  even in  the absence  of  a  notice  as contemplated by s. 111 (g) because the TP Act, as amended by the Amending  Act of  1929, did  not, in terms, apply to the present lease and the principles of justice, equity and good conscience, which  alone applied,  did  not  desiderate  the technical requirement of a notice in writing of an intention to determine the lease.      The  Rent  Controller,  at  the  floor  level,  ordered eviction and  the Appellate  Tribunal affirmed it, upholding the vice  of sub-letting  without consent of the landlord in the manner specified in s. 14(1)(b) as 909 also the  disability spelt  out in s. 14(1) (h) on acquiring vacant possession   of alternative residence. The resistence founded on  the TP  Act was also over-ruled by the appellate Tribunal. But,  when the  case reached  the  High  Court  in second appeal,  under s.  39 of  the Rent  Act, the  learned Single Judge felt that certain points of law spun out of the TP Act  deserved  consideration  by  a  Division  Bench  and referred the  appeal  for  determination  accordingly  to  a larger Bench.  The Division  Bench which  heard  the  appeal dismissed it but granted a certificate of fitness for appeal to the  Supreme Court  under Art.  133 of  the Constitution, restricting it,  however, to but one ground urged before it. Shri A.  K. Sen,  for the appellant, made a gentle hint that the High  Court had  heard long  arguments in March 1974 but could resolve  its doubts  to deliver a judgment only in May 1975 so much so the freshness of counsel’s submissions might have faded  somewhat and  so we should have a closer look at his points  de hors  the judgment under appeal. If this fact of a  long hiatus between hearing and decision were true, it must have  inflicted a  heavy strain  on the  memory of  the learned Judges  which it  is a  healthy practice  to  avoid. However, after listening to Shri A. K. Sen, we feel that his fears are unfounded.      A preliminary  pre-emptive objection  was urged  by the respondent that  the High  Court  having  circumscribed  the



certificate to a single point no other submissions should be permitted. We  see  no force in this untenable insistence on tying down  the appellant. Once a certificate of fitness has been  granted  under  Art.  133,  the  appeal,  in  all  its amplitude, is before this Court and every point may be urged by the  appellant provided  this Court  permits  it,  having regard to  the circumstances.  Perhaps, a  certificate under Art. 132,  or special  leave under  Art, 136  may stand on a different footing  if the  Court limits  the grounds  in any manner. Of  course, conceding  the Court’s  plenary power in appeals on  certificate under  Art. 133,  it is still within the Court’s  discretion not to allow a new point to be taken up [The  rulings in 1963 (2) SCR 440 and 1964(2) SCR 930 lay down the law on this point]. The contentions      We have  already indicated that, under the Rent Act two grounds  for  eviction  have  been  good  by  the  landlord. Indisputably, sub-letting  has been  substantiated. Even so, it  is  argued  that  only  where  a  lease  has  been  duly determined giving  rise to  a right  to  present  possession under the  TP Act  can the  landlord sue for recovery of the building. The  scheme of  the  Rent  Control  law,  speaking generally, is  to put  further fetters  on landlords seeking eviction from  urban buildings where, in the absence of such new barriers,  they will be entitled to ejectment. The acute scracity of  accommodation is the raison de’etre of the law. It is  not as if the rent control statutes are a bonanza for the landlords  and confer  a relaxed  right to  eject where, under the  general law,  they do  not have  such a  right in praesenti. To  hold otherwise  is to pervert the purpose and substitute an  added danger  for an  extra dyke.  It follows that even  where under a particular rent control statute the landlord makes  out grounds  for eviction,  he can institute proceedings in  this behalf only if de hors the said grounds he has cause of action under the TP Act. 910      We  agree   that,  if   the  rent  control  legislation specifically provides  grounds for eviction in supersession, not in  supplementation, of  what is  contained in  the T.P. Act, the situation may conceivably be different. But, in the Delhi Rent  Act,as in  many other  like  Statutes,  what  is intended to  be done  is not  to supplant but to supplement, not to eliminate the statutory requirements of determination of tenancy  but to  superimpose  a  ban  on  eviction  which otherwise may  be available  in conformity  with the  TP Act without fulfilment  of additional  grounds. ’No  order ..... for the  recovery of  possession of  any premises  shall  be made...... in  favour of the landlord against a tenant’ is a blanket ban  in s.  14(1) of the Rent Act. It is followed by enumeration of specific grounds proof of which may authorize the  Controller  to  make  an  order  for  the  recovery  of possession  of  the  premises.  It  follows  that  before  a landlord  can   institute  proceedings   for   recovery   of possession, he  has to  make out  his right (a) under the TP Act; and (b) under the Rent Act.      In Manujendra  Dutt this  Court considered the question elaborately and observed:           "The Thika  Tenancy Act  like  similar  Rent  Acts      passed in  different  States  is  intended  to  prevent      indiscriminate eviction  of tenants  and is intended to      be  a  protective  statute  to  safeguard  security  of      possession of tenants and therefore should be construed      in the  light of  its being  a social legislation. What      section 3  therefore does is to provide that even where      a landlord  has terminated the contractual tenancy by a



    proper notice such landlord can succeed in evicting his      tenant provided  that he falls under one or more of the      clauses of  that section. The word ’notwithstanding’ in      section 3  on a  true construction therefore means that      even  where   the  contractual   tenancy  is   properly      terminated, notwithstanding  the  landlord’s  right  to      possession under  the Transfer  of Property  Act or the      contract of  lease he cannot evict the tenant unless he      satisfied any  one of the grounds set out in section 3.      Rent Acts  are not ordinarily intended to interfere and      with contractual leases and are Acts for the protection      of tenants  and are  consequently restrictive  and  not      enabling,  conferring  no  new  rights  of  action  but      restricting  the   existing  rights  either  under  the      contract or under the general law.           *      *      *        *          *      The  right   to  hold  over,  that  is,  the  right  of      irremovability  thus   is  a  right  which  comes  into      existence after  the expiration  of the lease and until      the lease  is terminated  or expires  by efflux of time      the tenant need not seek protection under the Rent Act.      For he  is protected by his lease in breach of which he      cannot be  evicted. (See  Maghji Lakshamshi and Bros v.      Furniture Workshop-[1954]  AC 80,  90). In  Abasbhai v.      Gulamnabi (AIR 1964 SC 1341), this Court clearly stated      that the Rent Act did not give a right to the 911      landlord to  evict a  contractual tenant  without first      determining the  contractual tenancy.  In  Mangilal  v.      Sugan Chand  (AIR 1965 SC 101) while construing section      4 of  the  Madhya  Pradesh  Accommodation  Control  Act      (XXIII of  1965), a section similar to section 3 of the      present Act,  this Court  held that  the provisions  of      section 4  of that Act were in addition to those of the      Transfer of  Property Act and therefore before a tenant      could be  evicted by  a landlord,  he must  comply with      both the  provisions of  section 106 of the Transfer of      Property Act  and those of section 4. The Court further      observed that notice under section 106 was essential to      bring to an end the relationship of landlord and tenant      and unless  that relationship was validly terminated by      giving a  proper notice under s. 106 of the Transfer of      Property Act,  the landlord  could not get the right to      obtain possession  of  the  premises  by  evicting  the      tenant (See  also Haji  Mohammad v.  Rebati  Bhushan-53      C.W.N. 859)." We are  inclined to  hold that  the landlord  in the present case cannot  secure an  order  for  eviction  without  first establishing that  he has validly determined the lease under the TP Act.      We are  therefore thrown  back to an examination of the argument pressed  by the appellant-tenant that independently of the  rent control  law, the  respondent has no subsisting cause of  action. The  contention is  two-fold. Firstly, the lease is  one where the time is not limited and therefore s. 111(a) will  not apply  and is terminable on the part of the lessor only  in the  manner provided  by s. 106, i.e., by 15 days’ notice  expiring with  the end  of the  month  of  the tenancy. Admittedly,  no such notice was given. The counter- contention of the landlord, apart from the plea of statutory tenancy requiring  no further  notice to  determine, is that the lease is for a specified period even though it expresses itself as for a term less than one year and under s. 111 (a) has expired  by efflux  of time.  We cannot  agree  to  this feebly asserted  argument. A lease merely stating that it is



for a  period  less  than  one  year  is  ex  facie  for  an indefinite period  and, as  such, cannot expire by efflux of time.  Nor   are  we  convinced  that,  notwithstanding  the acceptance of  rent for  the period of 11 years the landlord had not assented to the holding over of the tenancy and that what emerged  was a  statutory tenancy which did not require notice in  law for  valid determination.  Possibly  so;  not necessarily.  However,  we  need  not  explore  this  aspect further in  the view that we take of the other submission of the  landlord   that  the   lease  has  been  determined  by forfeiture, not in terms of s. 111 (g) of the TP Act, but on the application  of the  principles of  justice, equity  and good conscience.  We will  examine this latter contention in some detail, as it is decisive of the fate of the case.      The Rent  Act contemplates  no elaborate  pleadings but filling out  of particulars  in a  pro forma which takes the place of  a plaint.  No specific  averment of forfeiture and consequent determination  of  the  lease  is  found  in  the petition. Having regard to the comparative informality 912 of these  proceedings and  the quasi-judicial  nature of the whole process, such an omission cannot be exaggerated into a lethal infirmity. What is perhaps more pertinent is that the petitioner was innocent of the plea of forfeiture throughout the stages of the trial before the Rent Controller. When the case reached  the appellate stage, it was specifically urged that the  tenancy ’stood  terminated by  forfeiture under s. 111 (g) of the TP Act. The Tribunal studied the terms of the rent deed, Exhibit AW 3/1 and held that there was an express condition against sub-letting and a provision that on breach thereof the  lessor had  the right  to  move  for  eviction- something equivalent  to a  right to  re-enter.  The  tenant remonstrated against this new plea being permitted in appeal but the  Court construed  the statement  in the pro-forma in column 18-B, that no notice is necessary, to mean that there was a  determination by forfeiture even without the issuance of a  notice. More over, the Court noticed the fact that the question was  only one of law and should be permitted in the interests of  justice. After some consideration of the issue the Tribunal  reached the  result ’that  the  tenancy  stood determined  by   forfeiture  and  therefore  no  notice  was required’. We  need not  tarry further  on the tenability of this  conclusion  since  the  matter  has  been  more  fully examined at the High Court level.      Arguments before  us have proceeded on the footing that a sub-tenancy  has been created and this amounts to a breach of condition  with a provision for re-entry. The tribunal in appeal held that no notice was necessary since the lease was created prior  to the  extension of  the TP  Act  to  Delhi. Although there  is some  confusion in  this order  about the determination of  the lease being under s. 111(g) or outside it, the  thrust of  the holding is found in these concluding words:           "However,  as   held  by   the  Supreme  Court  in      Narender, Lokmanya  Lodhi v. Narmada Bai & Ors. 1953 SC      228 the  provisions in  s. 111  (g)  as  to  notice  in      writing as  a preliminary to a suit for ejectment based      on forfeiture of a lease is not based on the principles      of justice,  equity or  good conscience  and would  not      govern the  bases made  prior to  the coming  into  the      force of the TP Act or to a lease executed prior to the      coming into  force of the TP Act. The lease in question      was admittedly  created before  December 1,  1962  and,      therefore, the  requirement of  the notice  in  writing      could not be insisted upon."



In  short,  the  clincher  was  ’justice,  equity  and  good conscience’.      The critical  phase of  the case  thus beckons  us, the last court  of law  and justice,  to the final valley of the forensic battle.  Does the  TP Act apply to a lease executed prior to  the extension of that Act to the area, even though the event  that determines  the  tenancy  viz.,  forfeiture, occurs after  such extension  ? Secondly, if the TP Act does not  apply   proprio  vigore   to  such  demises  and  their determination, can  the principles  of justice,  equity  and good conscience  be invoked  to transplant the twin rules in s. 111(g)  of the said Act? Thirdly, and this is the crux of the matter-if such transfusion is permissible, 913 is the  synergetic operation of breach of a condition of the lease  providing  for  re-entry  and  a  written  notice  of forfeiture on that score obligatory in terms of s. 111(g) or can written  notice of forfeiture be dispensed with as being no part  of equity  or justice  but a  technical  or  formal statutory requirement?  What, in short, is the status of the formula of justice, equity and good conscience, in the legal pharmacopoeia of India?      Shri A.  K. Sen  urges that  the  procedural  interdict against raising  the objection  based on  s. 111(g) is of no consequence. While  the law goes to the root of the case and is perfectly plain and the facts indubitably manifest on the record, the  refusal to examine and uphold the objection, if valid, is  to  surrender  the  judicial  function  of  doing justice according  to  law  at  the  illegitimate  altar  of technical inhibition. Moreover, he argues, the plea based on s. 111(g)  in some  form or  other, is  writ  large  in  the Tribunal’s order  and the High Court’s judgment. New nuances and clearer  focus may be allowed where the point of law has been broadly  touched upon.  Face to  face with the issue of forfeiture  under  s.  111(g),  the  appellant  presses  the position that since admittedly no notice in writing, as laid down  in   the  section,   has  been  issued,  the  eviction proceeding can be shot down by that legal missile alone.      Before the amending Act of 1929, all that was necessary for the  lessor to determine the demise on forfeiture was to do ’some  act showing his intention to determine the lease’. The rule  of English  law before the enactment of the Law of Property Act,  1925 appears  to be that a suit for ejectment is equivalent to re-entry. It has been held in India that an act showing  the lessor’s  intention to  determine the lease can take  the form  of  the  institution  of  an  action  in ejectment. The  statutory law,  as it now stands, however is that the  happening of  any of  the events  specified in  s. 111(g) does  not, ipso  facto, extinguish the lease but only exposes the lessee to the risk of forfeiture and clothes the lessor with  the right,  if he  so chooses, to determine the lease, by giving notice in that behalf. Mulla states the law correctly thus:           "Forfeiture of  a lease  requires the operation of      two factors:  (1) A  breach by the lessee of an express      condition of  the lease  which provides for re-entry on      such breach  and (2)  a notice by the lessor expressing      his intention to determine the lease."                     (Mulla on TP Act, p. 746-747, 6th Ed.) The notice  has to  be in writing. In Namdeo Lokman Lodhi(1) this Court laid down the law to the same effect. Mahajan J., observed:           "Section 111(g) in the terms makes the further act      an integral  condition  of  the  forfeiture.  In  other      words,  without   this  act   there  is   no  completed



    forfeiture at  all. Under  the old section an overt act      evidencing the requisite intention was 914      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." It cannot  be gainsaid  that a  notice, as  envisioned in s. 111(g) not  having been  given to  the lessee in the present case, determination  of the demise under s. 111(g) cannot be claimed by  the lessor. Thus, if the fortune of the landlord were to  turn on  the application of the TP Act as it stands now, the ejectment proceeding must be rebuffed.      Counsel for the respondent seeks to sustain his case on the submission  that the  TP Act does not apply to the lease in question  and therefore  a forfeiture  giving rise  to  a determination  of   the  lease  follows  upon  breach  of  a condition in  the lease,  to wit,  sub-lease of a portion of the building,  plus an  act  indicative  of  the  landlord’s intention to terminate the tenancy. According to counsel, in the absence  of a specific statutory provision, the rules of justice, equity and good conscience govern the situation and this element  is  amply  fulfilled  by  the  filing  of  the eviction petition  itself. We are, therefore, called upon to consider whether  the provisions  of the TP Act apply to the lease of  1952 executed  in Delhi  and, secondly, if it does not whether  its present  provision, as amended in 1929, has to be  treated  as  a  rule  of  justice,  equity  and  good conscience, or the mere institution of legal proceedings for ejectment would  be tantamount  to  an  act  evidencing  the intention of  the lessor  to avail himself of the forfeiture clause and  sufficient to  satisfy justice,  equity and good conscience.      A little legal history helps to appreciate this part of the controversy. The TP Act came into force on July 1, 1882; but it  extended in the first instance to the whole of India except certain  saved territories  including Delhi.  It  was actually extended to Delhi only in 1962. Section 2(c) of the Act provides  that ’nothing herein contained shall be deemed to affect  any right  or liability  arising out  of a  legal relation constituted  before this  Act comes  into force, or any relief in respect of any such right or liability’. There is some  dispute  as  to  what  ’nothing  herein  contained’ connotes. Shri  A. K.  Sen submitted  that the  Act had come into force  as early  as 1882 and while transactions created before that date (July 1, 1882) would not be affected by its provisions, subsequent  transactions would  be  governed  by that Act  even though they may have been executed before the extension of  the  Act  to  a  particular  area.  His  brief contention was,  to start  with, that  even if  the Act  was extended to Delhi in 1962, once it was so extended the whole Act came  into force  in its  totality in that area and only those transactions  which were expressly saved by s. 2 viz., ’legal relations  constituted before  this  Act  comes  into force’ escaped  from its  operation. So  much so the present lease being  of 1954  would be  covered by  s. 111  (g). Our attention was  drawn by  him to s. 63 of the Amending Act in this connection.      Shri  Chitaley,  for  the  respondent,  countered  this contention by  another extreme  stand. According to him, the Act came  into force  in Delhi  only when it was extended to that place,  viz., in 1962. Therefore, transactions prior to that date  swam out  of its  operation altogether.  A  third possibility, a sort of via media or golden mean, also 915 came up  for consideration  as a  close-up of  the  relevant



provisions was  taken. This view was that while transactions which came  into existence  in an  area before  the Act  was extended to that area, would be tested for their validity by the law  extant when  the transaction  was entered into, the remedies and  other incidents would be conditioned by the TP Act if  it had been extended to the area when the remedy was sought to  be enforced.  Shri Chitaley  wanted us  to accept Namdeo (supra)  as an  authority  for  his  proposition  and relied on  certain passages  therein. The  problem presented before us  cannot be  disposed of  in an  easy  fashion  and deserves serious  examination. In  the present  case, we are relieved of  that obligation for the weighty reason that the appellant has  all along  staked his case on the application of the  rules of justice, equity and good conscience and not on the textual rigour of s. 111(g) applied proprio vigore.      We have  already indicated  that although this question was not  canvassed before  the trial  Court,  the  appellate tribunal did consider it as a point of law. In doing so, the learned Tribunal  applied  what  he  considered  to  be  the principles  of  justice,  equity  and  good  conscience  and dispensed with  the drastic insistence on notice in writing. In the  High Court,  the position  taken up by the appellant did not  disturb the application of justice, equity and good conscience. On the contrary, the Division Bench emphatically asserted that the appellant never disputed this proposition. Indeed, both  in regard  to notice  to quit  and  notice  of forfeiture, the  appellant accepted  the application, not of the TP  Act as such, but of the rules of justice, equity and good  conscience.   We  may  as  well  except  the  relevant statement in the judgment of the High Court:           "In the present case, the provisions of the TP Act      had not  been extended  to Delhi  during  the  material      period and  these provisions  would therefore,  not  be      applicable to  the tenancy  in  question.  It  was  not      disputed before  us that  in view  of this only such of      the principles  embodied in  the provisions  of ss. 106      and 111  of the  TP Act  would regulate  the matter  as      could be  held to  be  consistent  with  the  rules  of      equity, justice  and good  conscience. It  was also not      disputed before  us that  even though  the provision of      section 106  of the  TP Act  laying down  the manner in      which a  tenancy may  be terminated  are  technical  in      character, in  that they  require such  termination ’by      fifteen days’ notice expiring with the end of the month      of the  tenancy’.  It  would  be  consistent  with  the      requirements of  equity, justice  and  good  conscience      that a tenant has reasonable notice of termination even      though it  does not expire with the end of the month of      a tenancy. It was also not disputed that in the present      case, no  notice whatever was sent to the tenant of the      application for  eviction when the notice was sought to      be justified  on the  ground that  no such  notice  was      necessary because  the tenancy  stood determined either      by efflux  of time  limited thereby  in  terms  of  the      principle embodied  in s.  111(a) of  the TP  Act or by      forfeiture following  the breach  by the  tenant of the      express condition regarding sub-letting in terms of the      principles embodied in s. 111(g) of the said Act." 916      If the  appellant’s case was that the TP Act applied of its own  force, he  would have  urged so  in the High Court, especially because  the  appellate  tribunal  had  dealt  an eviction blow  on him  by applying  the  rules  of  justice, equity  and   good  conscience.  Moreover,  the  categorical statement in  the judgment  of the  High Court  confirms the



view that  the appellant  stuck to  his stance  of  justice, equity and good conscience. Nay more. Even in the grounds of appeal to  this Court" he has only harped on justice, equity and good  conscience and  invoked  s.  111(g)  as  embodying equity and  good conscience. For the first time he has, by a volta face,  switched to  the TP Act as against the rules of justice, equity  and good  conscience. It is too late in the day to  set up  a new case like that. There are many reasons why. Even  though we  have power  to permit  a new  plea, we should not  exercise it  here. We  decline our discretion to allow  the  appellant  to  travel  into  the  new  statutory territory of  s. 111(g).  He has  to stand  or fall  by  his submission that  justice, equity  and good conscience is the alter ego  of  s.  111  (g)  of  the  TP  Act  in  its  dual requirements of  (a) the breach of a condition providing for re-entry and  (b) notice  in writing  to the  lessee  of  an intention to determine the lease.      Once we assume the inapplicability of the TP Act to the lease in question-an assertion of the respondent which we do not  feel  compelled  to  consider  in  this  appeal-we  are confronted by  the  concept  of  justice,  equity  and  good conscience which, admittedly, comes into play in the absence of any specific legislative provision. In India and in other colonies during  the Imperial  era a  tacit  assumption  had persuaded the  courts to embrace English law (the civilizing mission  of   the  masters)  as  justice,  equity  and  good conscience. Throughout  the Empire in Asia and Africa, there was an  inarticulate premise that English law was a blessing for the  subject peoples.  Robert M.  Seldman  writes  about Sudan:      "The courts were simply directed to decide cases on the      basis of  ’justice, equity  and good conscience’ [Civil      Justice Ordinance, 1929, Ch. 9, 10 Laws of the Sudan 13      (1955) ]. However, the judges were all English lawyers;      and  with  magnificent  insularity  it  developed  that      ’justice, equity  and good conscience’ meant not merely      English common  law but  English statutory law as well.      The author  has been  told by  an English barrister who      tried a  case in  the Sudan  some years ago that he was      amazed to  discover  that  ’justice,  equity  and  good      conscience’ meant  in his  case the  English  Sales  of      Goods Act, 1862."      (Law and  Economic Development  in Independent, English      Speaking, Sub-Saharan  Africa-Wisconsin Law Review Vol.      1966, Number 4, Fall) The Judicial Committee of the Privy Council struck a similar note in  Maharaja of  Jeypore  v.  Rukmani  Pattamahadevi(1) where Lord Phillimore stated:           "They are  directed by  the  several  charters  to      proceed where  the law  is silent,  in accordance  with      justice, equity, 917      and good conscience, and the rules of English law as to      forfeiture of tenancy may be held and have been held to      be consonant with these principles and to be applicable      to India." Unfortunately, even  after liberation, many former colonies, including  India,   did  not  shake  off  this  neo-colonial jurisprudence (See  A.I.R.  1950  Bom.  123).  This  is  the genesis of the idea that Indian ’good conscience’ is English Common Law  during the  reign  of  Empress  Victoria  !  The imperatives of  Independence and  the jural postulates based on the  new value  system of a developing country must break of from  the borrowed  law of  England received  sweetly  as ’justice, equity  and good  conscience’.  We  have  to  part



company with  the precedents  of the  British-Indian  period tying our  non-statutory area  of law to vintage English law christening it  justice, equity  and good conscience’. After all, conscience is the finer texture of norms woven from the ethos and  life-style of  a community  and since British and Indian ways  of life  vary so  much that  the validity of an anglophilic  bias  in  Bharat’s  justice,  equity  and  good conscience is questionable today. The great values that bind law to  life spell  out the text of justice, equity and good conscience and Cardozo has crystallised the concept thus:           "Life casts  the mould  of conduct which will some      day become fixed as law." Free  India  has  to  find  its  conscience  in  our  rugged realities and  no more  in alien  legal thought. In a larger sense, the  insignia of  creativity in  law, as  in life, is freedom from  subtle alien  bondage, not a silent spring nor hot-house flower.      So viewed,  the basic  question is: What is the essence of equity in the matter of determining a lease on the ground of forfeiture  caused by the breach of a condition ? Can any technical formality  be exalted  into a  rule of  equity  or should a  sense of  realism, read  with justice, inform this legal mandate  ? If  Law and  Justice-in the Indian context- must speak  to each  other, statutory  technicality such  as ’notice in  writing’ prescribed  in s.  111(g) of the TP Act cannot be  called a  rule of  equity. It  is no  more than a legal form  binding on  those transactions which are covered by the law by its own force. The substance of the matter-the justice of the situation-is whether a condition in the lease has been  breached and whether the lessor has, by some overt act, brought home to the lessee his election to eject on the strength of the said breach.      This Court, in Namdeo (supra) has explained the rule of justice, equity  and good  conscience. It  observed,  at  p. 1015:           "It is  axiomatic that  the courts  must apply the      principles of  justice, equity  and good  conscience to      transactions   which    come   up   before   them   for      determination even  though the  statutory provisions of      the Transfer of Property Act are not made applicable to      these  transactions.  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 918      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  Transfer of  Property  Act      coming into force.           The main  point for  consideration thus is whether      the particular  provision introduced in sub-section (g)      of section  111 of the Transfer of Property Act 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      subsection (g)  of section  111 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 Transfer  of Property  Act 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 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   the  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 111. 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      subsection (g)  as it  stood before 1929, and to leases      executed after  1st April 1930, the principle of equity      is the 919      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."      Of course,  in that  case, Mahajan,  J.  has  dwelt  at length on  the English  law of  landlord and  tenant and the discussion is  partially suggestive  of the  English law  of real property  being a good guide to the Indian Judges’ good conscience.  But   the  ratio   is  clear   that  processual technicalities  and   even  substantive  formalities  cannot masquerade as  justice and  equity. The touchstone is simply whether the formal requirement of the law is part of what is necessarily just  and reasonable.  In this  perspective, the conclusion is  clear  that  a  notice  in  writing  formally determining the tenancy is not a rule of justice or canon of commonsense. Realism,  married to  equity,  being  the  true test, we  are persuaded  that the pre-amending Act provision of s. 111 (g) is in consonance with justice. If so, the mere institution of the legal proceeding for eviction fulfils the requirement of  law for  determination  of  the  lease.  The conscience of the Court needs nothing more and nothing else. The rule in Namdeo (supra) settles the law correctly



    Reference was  made at  the bar  to the ruling in Mohd. Amir(1) To  understand that  decision  we  have  to  make  a distinction between the principles embodied in s. 111(g) and the  provisions   thereof.  Not  all  the  stipulations  and prescriptions in  the section  can be  called the principles behind it.  In this  light there is no contradiction between the two  cases of  this  Court-the  earlier  one  of  Namdeo (supra) and  the later  Mohd. Amir(1). We are satisfied that the situation in the present case is squarely covered by the earlier ruling. The High Court is right in its view.      It is  a fitting  finale to  this part  of the argument that in  the High  Court arguments  proceeded on the footing that the  Supreme Court  has ruled  in Namdeo  (supra)  that ’there being  no requirement  in English  law of  a  written notice to  the lessee  of the  intention of  the  lessor  to determine the lease on forfeiture, the provision of a notice would not  be considered  as being consistent with the rules of equity,  justice and  good conscience’.  We have  already made our  comments on  the anglophonic  approach and  do not wish to  reiterate them  here. However,  there  are  certain pregnant observations in the judgment under appeal pertinent to the present discussion. Observed the High Court:           "In the  case of  Namdeo Lokman  Lodhi the Supreme      Court was  directly concerned  with the question of the      requirement of written notice engrafted into the clause      (g) by  the amendment of 1929 was of a technical nature      or could be said to be consistent with the English rule      regarding forfeiture  and therefore, in consonance with      the principles  of justice,  equity and good conscience      and the question was clearly answered in the negative." 920 The irrelevance  of the  English law  as such  to notions of good conscience  in India  notwithstanding, we  agree that a written  notice   is  no   part  of  equity.  The  essential principles, not the technical rules, of the TP Act form part of justice,  equity  and  good  conscience.  The  conclusion emerges that  the landlord’s  termination of  the tenancy in this case is good even without a written notice.      Many other niceties of law were presented to us by Shri A. K.  Sen to  extricate the  tenant from eviction. They are too unsubstantial  and intricate for us to be deflected from the sure  and concurrent findings, read in the background of an alternative accommodation being available to the tenant.      We dismiss  the appeal  but direct  that this order for eviction shall  be executed  only on or after March 1, 1976. The over-all  circumstances justify  a  direction  that  the parties do bear their costs throughout. P.H.P.                                     Appeal dismissed. 921