- (1.) THIS is an application under Art. 226 of the Constitution by Shivshankar praying for a writ of certiorari quashing the order of the Collector, Udaipur, ordering the eviction of the applicant from a house of which he was tenant.
(2.) THE facts of the case are that the applicant took a house on rent from the 1st of May 1944 under a written lease from opposite party No. 4 and the tenancy was a monthly tenancy. One of the terms of the lease was that the landlord would have to give two months' notice before asking the tenant to vacate the house. It may be mentioned that the Transfer of Property Act was not in force in Udaipur, from where this case comes, when the tenancy arose. From July, 1948, however, the United State of Rajasthan Buildings (Lease and Rent Control) Ordinance, 1948, (Ordinance No. XXII of 1948) hereinafter called the Ordinance, came into force in that area. On the 10th of February 1950 the landlord gave notice to the applicant to vacate the house on or before the 28th of February, 1950. THEreafter the landlord filed an application on the 29th of March 1950 before the Rent Controller, Udaipur, for an order evicting the applicant and directing him to hand over possession of the house under sec. 7 of the Ordinance. This application before the Rent Controller, Udaipur, seems to have dragged on and was only decided in December 1955. THE Rent Controller ordered the eviction of the applicant and gave him two months' time to vacate the house. THE applicant went in appeal to the District Magistrate and his appeal was dismissed. Consequently, the present application was filed in this Court. A large number of points have been raised by the applicant, but for present purposes we do not think it necessary to refer to them. The main point, which was urged on behalf of the applicant, was that as the contract between the parties provided that the landlord would give two months' notice to the tenant if he wanted to evict him and as that notice was not given, the Rent Controller had no jurisdiction to order the eviction of the tenant. It is urged that the Rent Controller as well as the District Magistrate committed an error of law apparent on the face of the record when they held that two months' notice provided by the contract was not necessary before applying for eviction under sec. 7 (2) of the Ordinance. The application has been opposed on behalf of the landlord and it is urged that the Rent Controller and the District Magistrate were right in holding that two months' notice, as provided by the contract, was not necessary and that in any case, this was not an error of law apparent on the face of the record and this Court should not interfere in its extraordinary jurisdiction, for it was not now disputed that the Rent Controller and the District Magistrate had jurisdiction to deal with the matter. Now it is well settled that where there is an error of law apparent on the face of the record, it is open to the High Court to interfere by way of a writ of certiorari, even though otherwise the subordinate authorities have jurisdiction in the matter. What is an error of law apparent on the face of the record is also well settled and the authorities are that the court should be able to find out the error without long arguments of a balanced nature on either side. In other words, no great citation of authorities should be necessary to discover the error and the court should be able to say after a careful perusal of the words of the law that there is an error of law in its application. The law in this case is the Ordinance and it is sec. 7 to which we have to apply our minds. It may be mentioned that the Transfer of Property Act was still not in force when the Ordinance was passed and was only applied to this area some months later by the United State of Rajasthan Transfer of Property Ordinance, 1948 (Ordinance No. LXXIII of 1948) in November 1948. Now the purpose for which the Ordinance was promulgated was to regulate the letting of residential and non-residential buildings and to control the rents for such buildings and to prevent unreasonable eviction of tenants. It is obvious from this that one of the main purposes of the Ordinance was to protect the tenants from being unreasonably evicted by their landlords. It is in this background that we shall have to look at sec. 7 of the Ordinance. The relevant portion of sec. 7 (1) may be put down here - "notwithstanding anything contained in any contract, no court shall pass any decree or order in favour of a landlord whether in execution of a decree or otherwise and whether before or after the termination of the tenancy, evicting any tenant except in accordance with the provisions of this section. " This provision was clearly for the protection of the tenant and protected him from being evicted, among other things, under the general law of the land under which a landlord could always file a suit for eviction after giving notice to a tenant to vacate. The duration of this notice depended on contract between the parties. But once a notice was given as provided by the contract, the tenant was liable to eviction by a suit without any further ado. Therefore, sub-sec. (2) of sec. 7 laid down certain restrictions on the power of the landlord to evict and the landlord could not evict a tenant by merely giving a notice of termination of tenancy after the Ordinance came into force. He had to show certain other conditions laid down in sub-sees. (2) and (3) of sec. 7. The question, therefore, that falls for consideration is whether there is anything in sec. 7 which does away with the necessity of giving notice which might be provided in the contract or in any law for the time being in force. We have looked into sub-sec. (1) with care and we find nothing in it which exonerates the landlord from giving notice as provided in the terms of the contract or in any law for the time being in force before applying under sub-sec. (2) of sec. 7 to the Controller for eviction of a tenant. The Rent Controller and the District Magistrate, when they held that notice to quit was not necessary, relied on a decision of the Madras High Court in R. Krishnamurthy vs. S. Parthasarthy (1 ). Sec. 7 (1) of the Madras Buildings (Lease and Rent Control) Act (Act No. XV of 1946) appears to be in exactly the same terms as sec. 7 (1) of the Ordinance. The Madras High Court held that in view of the provisions of sec. 7 of the Madras Act, notice to quit as required under the terms of the contract or under the law was not necessary, as it became a mere formality after the Madras Act came into force. They came to this conclusion particularly because of the words "whether before or after the termination of the tenancy" appearing in sec. 7 (1 ). The same words appear in sec. 7 (1) of the Ordinance and the Rent Controller and the District Magistrate following this case have held that notice to quit under the contract or under any law in force was not necessary before an application for eviction is made under sec. 7. 7. We are of opinion, with all respect to the learned Judges, that this view of law is patently wrong. An example will immediately illustrate why we consider this view to be patently wrong. Suppose that in a particular contract, the land-lord and the tenant have agreed that six months' notice would be given by the landlord before the tenant is evicted. Suppose again that the authorities dealing with application under the Ordinance act with business and despatch and an application made under sec. 7 sub-sec. (2) in a case of this kind is disposed of within a month or six weeks. Suppose again that the tenant has no ground of appeal except this that he was not given the notice to quit prescribed in the terms of the contract. Can it be said that it was the intention of the Ordinance that such a tenant, who under the terms of the contract was entitled to six months' notice, would under the Ordinance be liable to be evicted only two months after the application was made under sec. 7 sub-sec. (2)? We must not forget that one of the main object of the Ordinance was to prevent unreasonable eviction of tenants. It seems to us obvious in a case of this kind that the legislature could not have intended that the protection afforded to a tenant by the contract should disappear because of the Ordinance, when the Ordinance obviously was providing further fetters on the right of the landlord to evict the tenant. This example, in our opinion, is a complete answer to the view taken by the Madras High Court in the above case and shows that the District Magistrate and the Rent Controller committed an error of law apparent on the face of the record when they held that notice to quit, as provided in the terms of the contract or in any law for the time being in force, was not necessary before an application was made under sec. 7. We may go a little further and add that even if there is nothing in the terms of contract and there is no law applicable providing for a notice to quit, it would still be necessary in the interests of justice, equity and good conscience that the landlord should give some reasonable notice, the length of which will depend on the circumstances of each case, to the tenant before applying for eviction under sec. 7 sub-sec. (2) of the Ordinance. But there cannot be the least doubt that the Ordinance was not taking away the protection afforded to tenants by the terms of their contract or by any law in force and that the conditions mentioned in sec. 7 sub-sec. (2) or (3) were in addition to any other protection that the tenant might be enjoying under the contract or under any law in force. It only remains now to consider another argument raised on the words "whether before or after the termination of the tenancy". The view seems to have been taken in the Madras case that a tenant can be evicted even before the termination of the tenancy by notice to quit and, therefore, notice to quit was not necessary. We are of opinion that this is not the meaning to be attached to this phrase. In areas where the Transfer of Property Act was not in force, it was not necessary to give notice of forfeiture and suits could be brought before the termination of the tenancy if the forfeiture had been incurred and the mere bringing of the suit would be sufficient notice of the intention to terminate the tenancy. The use of the word "before" therefore, in this law is really to cover such cases where notice in the terms of sec. III (g) of the Transfer of Property Act may not be necessary. It cannot, in our opinion mean that where notice to quit was provided either by contract or by the terms of any law, that notice became unnecessary because the word "before" appears in this phrase. It is remarkable that the question put to the learned Judges in the Madras case was this. "does sec. 7 of Act No. XV of 1946 by necessary implication abrogate or repeal sec. 111 (h) of the Transfer of Property Act?" They do not seem to have answered that question by saying yes or no. What they said in reply was that sec. 111 (h) of the Transfer of Property Act has no place in the scheme of procedure laid down in sec. 7 of the Act. This means that they were not prepared to say that sec. 7 of the Act had abrogated sec. 111 (h ). If there was no such abrogation, we fail to see, with all respect, why the notice prescribed by sec. 111 (h) was not necessary before proceedings were taken under sec. 7, sub-sec. (2 ). To our mind, unless it can be said that the requirement of notice to put in the contract or in any law for the time being in force was abrogated by necessary implication by sec. 7, the notice would still be required. As we read sec. 7, there is nothing in it which expressly or by necessary implication abrogates the requirement of notice to quit. As we have pointed out by the example cited above, if this view were taken, in some cases the tenant may even lose the protection which his contract or the law gives him and this could never be the intention of a law, the main purpose of which was to prevent unreasonable eviction of tenants. We are, therefore, of opinion that notice to quit, as provided in the contract between the landlord and the tenant in this case was necessary before the landlord could apply under sec. 7, sub-sec. (2 ). Inasmuch as the Rent Controller and the District Magistrate have held that such a notice to quit was not necessary, they have committed an error of law apparent on the face of the record. Admittedly the landlord in this case gave notice on 10th of Feb. , 1950, asking the tenant to vacate by 28th February, 1950. What the contract required was two months' notice. The application under sec. 7, could be filed only after the period of two months' notice had expired and the tenant did not vacate the house on its expiry. The orders of the Rent Controller and the District Magistrate must, therefore, be set aside. Two other points, namely one relating to waiver and the other relating to the application of sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950) were also raised on behalf of the applicants in this case, but in view of our decision on the first question relating to notice to quit, we need not go into these questions. We, therefore, allow the application and set aside the orders of the Rent Controller and the District Magistrate. In view of the circumstances, however, we order parties to bear their own costs in this Court. .;