TMI Blog1961 (12) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... principles. In the fourth case, which is covered by Civil Appeal No. 259 of 1959, it was held that there had not been on the facts of the case, default in payment of rent for three years and, therefore the tenant was entitled to statutory relief against eviction under s. 25(1) of the Act which we shall later set out. The High Court at Bombay by a summary order, without stating any reasons, refused to interfere when moved under Art. 227 of the Constitution. The landlords have therefore filed these appeals with leave of this Court. We shall now deal with the first three cases and later take up the fourth case. In these three cases relief was granted to the tenants on the basis of certain observation of the High Court at Bombay in Sitaram Vithal Chitnis v. Gundu Satyappa Dhade, Special Civil Application No. 1695 of 1955, unreported, which we quote here: Every court of equity will be extremely reluctant to enforce an order of ejectment against a tenant when the only ground on which the landlord seeks ejectment is failure to pay rent. Therefore, if the tenant is willing to pay all arrears of rent, in our opinion, it would be inequitable to turn these tenants out when they ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent together with the costs of the proceedings if awarded, shall be paid within one year from the date of the order and that if before the expiry of the said period, the tenant fails to pay the said arrears of rent and costs, the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted. (2) Nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in section 14. S. 29(1) A tenant or an agricultural labourer or an artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for such possession to the Mamlatdar. x x x x x x x x x x x x x x x x x x x x x x x x (2) No landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him. (3) On receipt of such application un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landlord. Here, that is not the position. The tenancies have been terminated in these cases under a statutory provision. In the circumstances that have happened, the landlords have in our opinion acquired a statutory right to the possession of the lands and, therefore, to eject the tenants, the reasons for which view we shall discuss in some detail later. In such a case, no relief can be granted to the tenants on equitable principles. Equity does not operate to annul a statute. This appears to us to be well established but we may refer to white and Tudors Leading Cases in Equity (9th ed.) p. 238, where it is stated, Although, in cases of contract between parties, equity will often relieve against penalties and forfeitures, where compensation can be granted, relief can never be given against the provisions of a statute. The order of the authorities taking away the landlords' statutory right to possession by application of rules of equity cannot be supported. It was then said that s. 29(3) gives ample power to the authorities to refuse to make an order for possession in the landlord's favour if the tenant pays up the arrears and the justice of the case requires t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is right by providing by s. 29(2) for its enforcement by an application to the Mamlatdar. Indeed, s. 29(2) itself mentions this right expressly for it says that the application shall be made within two years from the date on which the right to obtain possession of the land accrued to the landlord. We repeat that this is a statutory right because it is the statute which fixes the term of the tenancy and also provides for its termination; it is not a contractual right which may be made subject to an equitable relief. We turn now to s. 25. Under sub-s. (1) of this section the tenant has a right to an order continuing the tenancy inspite of its termination by notice under s. 14 for non-payment of rent. Sub-section (2) however provides that sub-s. (1) shall not be available to a tenant if he has failed for any three years to pay rent. The result is that the statute itself provides for relief to a tenant where such a termination has taken place and prescribes the conditions on which relief would be available. It would follow that the statute indicates that the tenant would not have the relief in any other circumstances. The result of this would inevitably be that the statute confers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder a similar head as dealt with previously, was that the tenants were entitled to relief against forfeiture under s. 114 of the Transfer of Property Act. Section 3 of the Act provides that the provisions of Chapter 5 of the Transfer of Property Act, 1882 shall in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of land to which this Act applies . The present contention of the tenents is based on this section. It may be pointed out that ch. 5 of the Transfer of Property Act includes ss. 114 and 117. The last mentioned section provides that nothing in ch. 5 shall apply to leases for agriculture purposes except in so far as the State Government by notification declare them to be applicable. No such notification had been issued by the State Government. Therefore, the landlords contend, s. 114 does not apply to the present leases which are for agricultural purposes and the tenants are not entitled to relief under it. It does not seem to us necessary to decide the question so raised. In our view, the provisions in s. 114 of the Transfer of Property Act are inconsistent with the provisions of the Bombay and cannot, therefore, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon for the purposes of s. 25(2). We did not have the original judgment of the High Court placed before us and are not aware of the reasons which persuaded it to the view that it took. In our opinion, that view is clearly incorrect, Section 25(2) says that nothing in s. 25-which of course only means sub s. (1) of that section-shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in s. 14. We are unable to appreciate the contention that when a tenant has been granted relief under s. 25(1) in respect of any year's default, the default merged in the order granting relief and deceased to be a default. How can the default for the year merge in an order? No doubt relief has been given against the consequence of the default for the year, but that does not wipe out the default itself; it only prevents the termination of the tenancy, if any, consequent thereon, becoming effective. Inspite of the relief granted under s. 25(1), the tenant remains a tenant who made default in paying rent for the year within the period specified in s. 14 and that is the tenant mentioned in s. 25(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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