Sanjeev vs Indore Municipal Corporation Indore & Anr.

(i)

Respondents be directed not to physically throw out the petitioner from the property in question ie. 1/7 MG. Road Indore and the respondents may be restrained from interfering, with the peaceful and vacant possession of the petitioner.

Gi) Quash the impugned order dated 13.10.2022 (Annexure P/30) and to allow this petition with costs.

(iii)

Grant such other relief which may be deemed fit by this Hon'ble Court to the petitioner.

Dates Events

"This indenture made this 15th day of August 1919 between the superintendent, Indore Municipality on behalf of High Highness the Maharaja Holkar (herein called the lessor which expression shall be deemed to include his successor in office) of the one part and Dr. Prabhakar Ramkrishna Bhandarkar of Indore (hereinafter called the lessee which term shall include his heirs, executors, administrators and assigns) of the other part witnessed that whereas the piece of land hereinafter mentioned is vested in lessor by virtue of his office and whereas he has such full and unqualified right to grant the same in perpetual lease and whereas the lessee as agreed to receive the same in perpetual lease according to the stipulation hereinafter mentioned, the lessor and the lessee by this present mutually agree as follows."

A. Petitioner has an alternative remedy for his relief against dispossession.

B. Petition involves disputed questions of law which cannot be decided in writ jurisdiction under Article 226,

C. Inconsistent/Contradictory pleas raised by the Petitioner.

D. Title over the subject land vests in the Indore Municipal Corporation by operation of law. Burden to prove otherwise lies on the Petitioner.

Recitals of the lease deed.

Position of Superintendent under the 1909 Act

"36. Municipal property

(1)

Subject to any special reservation which may be made by the Government, all property of the nature hereinafter in this section specified and situated within the limits of the Municipality shall be Municipal property vested in the Superintendent on behalf of the Government and shall, with all other property which may become so rested, or under his direction, management and control and shall be held and applied by him for the purposes of this Act, that is to say....."

Municipality Map of 1910 and corresponding Khasra Abadi entries of 1910

Huzur Shankar Order No. 214 dated 19.05.1917 issued by the Maharaja and Section 36(h) of the 1909 Act

E. Lessor-lessee relationship is admitted by Petitioner's Predecessor-in- title,

F In matters of eviction or cancellation of lease, proof of ownership is not as strict as in a suit for declaration of title.

"It is a settled principle of law... that in an eviction suit... when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit. In other words, the burden of proving the ownership in an eviction suit is not the same like a title suit."

"It is trite that in a suit for eviction, the proof of ownership of the tenanted premises it not to he strictly looked at as in a suit for declaration of title."

G. Petitioner is barred by Estoppel from contesting Respondent's title

H. Covenants of the lease deed are clear and binding on the parties and the same cannot be re-written under Article 226.

1. Petitioner remains bound by the original lease terms and has breached them by commercial use.

J. Waiver/Acquiescence of one breach does not automatically amount to waiver of the Covenant in perpetuity.

K. Revenue entries/Khasra panchshala are irrelevant in respect of lands included within the Municipal limits.

1. Land use as per the Master Plan does not dilute the conditions of the Lease.

M. Pending SLP (C) No. 23769/2017 does not preclude Respondent's right as lessor.

N. No reliance can be placed on stayed Judgements

"20.

A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined. (See - State of U.P. Vs. Synthetics & Chemicals Ltd., (1991) 4 SCC 139, para 41.)"

O. Due opportunity of hearing given to the Petitioner.

"This indenture made this 15th day of August 1919 between the superintendent, Indore Municipality on behalf of High Highness the Maharaja Holkar (herein called the lessor which expression shall be deemed to include his successor in office) of the one part and Dr. Prabhakar Ramkrishna Bhandarkar of Indore (hereinafter called the lessee which term shall include his heirs, executors, administrators and assigns) of the other part witnessed that whereas the piece of land hereinafter mentioned is vested in lessor by virtue of his office and whereas he has such full and unqualified right to grant the same in perpetual lease and whereas the lessee as agreed to receive the same in perpetual lease according to the stipulation hereinafter mentioned, the lessor and the lessee by this present mutually agree as follows."

107. Leases how made

A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.

All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:

Provided that the State Government from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

109. Rights of lessor’s transferee.—

If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.

111. Determination of lease.—

A lease of immoveable property determines—

(a)by efflux of the time limited thereby;

(b)where such time is limited conditionally on the happening of some event— by the happening of such event;

(c)where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event—by the happening of such event;

(d)in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;

(e)by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;

(f)by implied surrender;

(g)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; (h)on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.

116. Effect of holding over.—

If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.

82. Property vested in Corporation.-

(1)

] Subject to any special reservation made or to any special conditions imposed by the Government, all property of the nature hereinafter in this section specified and situated within the city, shall vest in and be under the control of the Corporation, and with all other property which has already vested, or may hereinafter vest in the Corporation shall be held and applied by it for the purposes of this Act, namely :

(a)all public gates, markets, slaughter-houses, manure and night-soil deposits and public buildings of every description which have been constructed or maintained out of the municipal fund;

(b)all public streams, rivers, springs, and works for the supply, storage and distribution of water for public purposes and all bridges, buildings, engines, materials and things connected therewith or appertaining thereto, and also any adjacent land (not being private property) appertaining to any public tank or well;

(c)all public sewers and drains, and all sewers, drains, culverts and watercourses in or under any public street or constructed by or tor the Corporation along side any public street, and all works, materials and things appertaining thereto;

(d)all dust, dirt, dugs, ashes, refuse, animal matter, or filth or rubbish of any kind, or dead bodies, of animals, collected by the Corporation from the streets, houses, privies, sewers, cesspools or elsewhere or deposited in places fixed by the Corporation;

(e)all public lands, lamp-posts and apparatus connected therewith or appertaining thereof;

(f)all land or other property transferred to the Corporation by the Government or acquired by gift, purchase or otherwise for local public purposes;

(g)all public streets, not being land owned by the Government and the pavements, stone and other material thereof and also trees growing on, and erections, materials, implements and things provided for such streets;

(h)all open lands which are neither the property of any person nor of the Government.

(2)[ All property such as tank, playground, park, garden and other places meant for public utility vested in the Corporation shall neither be used for any other purpose nor be permitted to use for any other purpose by the Corporation.]

[Inserted by M.P. Act No. 29 of 2003.]

83. Record of immovable property-

[(1) The Corporation shall maintain a register and a map of all immovable properly of which it is the proprietor or which vests in it otherwise or which it holds in trust for the Government.

(2)[ The Commissioner, after having demarcated every land, building, establishment and plant etc. in the ownership of the Corporation, shall arrange to affix therein the boards showing that the said property is in the ownership of the Corporation.

(3)

The Commissioner at each year in the budget meeting of the Corporation shall publish the details of all immovable property of the Corporation and send its copy along with the agenda to the members.

(4)

The Commissioner shall, from time to time, in order to save from encroachment on the property of the Corporation inspect and take action to remove the encroachment if found.]

A. Sajni v. Indore Development Authority, 2011 SCC OnLine MP 1308 : (2012) 1 MP LJ 53.

14.

We have heard the learned counsel for the parties at length and considered their contentions.

16.

In order to appreciate the controversy, it would be appropriate to extract the relevant portion of the judgment of the Supreme Court in the case of State of U.P. v. Maharaja Dharmander Prasad Singh (supra) on which, as stated above, both the parties have placed strong reliance:

“10.

The High Court was persuaded to the view that the proceedings initiated and the action taken by the Government and the Vice-Chairman of the LDA in the matter, respectively, of forfeiture of the lease and the cancellation of the permission to build were both infirm in law and required, to be quashed. Accordingly, writ petitions 6819 of 1985 and WP 367 of 1986 were allowed and the order dated 19-11-1985 of the Government purporting to cancel the lease was quashed. Likewise, WP 3463 of 1986 filed jointly by the Lessees was allowed and the show cause notice dated 9-1-1986 as well as the order dated 19-4-1986 of the Vice-Chairman cancelling the permission were quashed.

11.

We may first take up the appeals of the State Government and of the LDA assailing the order of the High Court quashing the cancellation of the lease. Sri Yogeshwar Prasad for the appellants submitted that the High Court fell into an error in allowing a matter, which should properly have been the subject-matter of a civil-suit, to be agitated in proceedings under Article 226 of the Constitution. Learned counsel submitted that the relationship between the parties was one of the Lessor and Lessee; the dispute between them pertained to the question whether there were breaches and non-performance of the covenants and conditions of the lease justifying the forfeiture of the lease, and that these matters, pertained to a private law situation and were not appropriately matters for enforcement of public law remedies. Learned Counsel further submitted that the question whether there were breaches of covenants on the part of the lessee involved the construction of the terms of the lease-deed and required evidence on the matter. Disputes of this nature, learned counsel submitted, could not be resolved on mere affidavits. Thirdly, Sri Yogeshwar Prasad submitted that on the merits of the contentions, the High Court should have noticed that even on the facts admitted, there were clear violations of the covenants and conditions of the lease; Learned counsel also submitted that the view of the High Court that a reasonable opportunity of being heard had been denied to the respondents was erroneous and that, at all events, no hearing could be contemplated in the context for forfeiture of a lease of this nature.

Sri Sorabjee for the respondents contended that the State, even as a lessor, could not act arbitrarily either in the grant or premature termination of the leases of public property and disputes arising in such contexts cannot always be reckoned as private law situations and that, at all events, the threatened exercise of extra-judicial re-entry by the State, being violative both of the limitations of the powers of the State as lessor under the law of landlord and tenant and of its actions as State, is a matter which requires to be mandated against.

12.

The show-cause notice preceding the cancellation of the lease and the decision dated 19-11-1985 to cancel the lease, refer to and rely upon 10 grounds. Grounds 1 to 7 pertain to what the Government consider to be violations and breaches of the terms and conditions of the lease. They pertain to an alleged change of user, to subletting and subdivision of the leasehold property. The grounds also refer to the alleged non-disclosure of the terms and conditions of the Memorandum dated 7-7-1984 between the Lessees on the one hand and Messrs Amar Builders Private Limited oh the other. The grounds for forfeiture also refer to the likelihood of fraud being practiced on the prospective purchasers of the fiats as to the nature and extent of the lessees’ subsisting interest under the lease and the limitations thereon.

We do not propose to go into the merits of these grounds and their sufficiency in law to support the purported forfeiture as, in our view, this exercise, having regard to the disputed questions of fact that are required to be gone into in that behalf, are extraneous to proceedings under Article 226 of the Constitution.

13.

In regard to the merits of the grounds for forfeiture of the lease, the High Court after an elaborate discussion of the relevance and tenability of each of the grounds, the learned judge held:

“From the comments made by me on the above nine grounds it would be seen that some of the grounds are irrelevant or illusory or based on irrelevant material or on non-existent facts and some require serious consideration which has not been given. It has also been seen that while under the lease-deed the right of re-entry could be exercised only for a breach of the term of the lease in presenti, the lease has been cancelled for a breach in future. In this view of the matter the impugned order of the State Government cannot be sustained;”

Shri Yogeshwar Prasad says that this exercise was extraneous to a proceeding under Article 226 as the question whether the construction with 39 flats would be one unit or multiplicity of units; whether if third party rights were created by the transfer, or use, of the flat, that would amount to sub-letting or assignment; Or would, in arty other way, violate the terms and conditions of the lease and the like, would not be matters that admit of being satisfactorily resolved on mere affidavits. Learned counsel submitted that even according to the learned judges there were serious questions to be examined.

14.

On a consideration of the matter, we think, in the facts and circumstances of this case, the High Court should have abstained from the examination of the legality or correctness of the purported cancellation of the lease which involved resolution of disputes on questions of fact as well. In Express News Papers v. Union of India, [1985] Supp. 3 SCR 382 Venkataxamiah, J. in a somewhat analogous situation observed:

“The rest of the questions relate truly to the civil rights of the parties flowing from the lease deed. Those questions cannot be effectively disposed of in this petition under Article 32 of the Constitution. The questions arising out of the lease, such as, whether there has been breach of the covenants under the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. are foreign to the scope of Article 32 of the Constitution. They cannot be decided just on affidavits. These are matters which should be tried in a regular civil proceeding. One should remember that the property belongs to the Union of India and the rights in it cannot be bartered away in accordance with the sweet will of an Officer or a Minister or a Lt. Governor but they should be dealt with in accordance with law. At the same time a person who has acquired rights in such property cannot also be deprived of them except in accordance with law. The stakes in this case are very high for both the parties and neither of them can take law into his own hands.”

Accordingly, we hold that the question whether the purported forfeiture and cancellation of the lease were valid or not should not have been allowed to be agitated in proceedings under Article 226.

15.

Sri Sorabjee submitted that great hardship and injustice would be occasioned to the respondents if the State Government, on the self-assumed and self-assessed validity of its own action of cancellation of the lease, attempts at and succeeds in, a resumption of possession extra-judicially by physical force. Sri Sorabjee referred to the notice dated 19-11-1985 in which the Government, according to Sri Sorabjee, had left no-one in doubt as to its intentions of resorting to an extra-judicial resumption of possession. Sri Sorabjee referred to paras 3.10 and 4 of the order dated 19-11-1985.

A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of, the lease by forfeiture or otherwise. The use of the expression ‘re-entry’ in the lease-deed does not authorise extrajudicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In, the present case, the fact that the lessor is the State does not place it, in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a ‘legal pedigree’. In Bishandas v. State of Punjab, [1962] 2 SCR 69 this Court said:

“We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.”

“Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law,”

Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extra-judicial right of re-entry. Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accordance with law. Government is, accordingly, prohibited from taking possession otherwise than in due, course of law.

16.

In the result, the appeals of the State of Uttar Pradesh (SLPs 4761 and 4762 of 1987) and of the LDA (SLPs 13298 and 11498 of 1987) directed against the common Judgment dated 8-12-1985 in so far as it pertains to WP 6819 of 1985 and WP 357 of 1986 are allowed and the said two writ petitions are dismissed, leaving the question of the legality and validity of the purported cancellation of the lease and the defence of the lessees open to be urged in appropriate legal proceedings, whenever and wherever Government proceeds to initiate action in accordance with law for resumption of possession on the basis of the alleged cancellation or forfeiture of the lease. Any developmental work that may be made by the lessees or at their instance would, of course, be at their own risk and shall be subject to the result of such proceedings.”

B. State of U.P. v. Maharaja Dharmander Prasad Singh, (1989) 2 SCC 505 :

1989 SCC OnLine SC 63 at page 516

27.

On a consideration of the matter, we think, in the facts and circumstances of this case, the High Court should have abstained from the examination of the legality or correctness of the purported cancellation of the lease which involved resolution of disputes on questions of fact as well. In Express Newspapers v. Union of India [(1986) 1 SCC 133 : 1985 Supp 3 SCR 382] Venkataramiah, J. in a somewhat analogous situation observed: (SCC p. 258, para 202) “The rest of the questions relate truly to the civil rights of the parties flowing from the lease deed. Those questions cannot be effectively disposed of in this petition under Article 32 of the Constitution. The questions arising out of the lease, such as, whether there has been breach of the covenants under the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. are foreign to the scope of Article 32 of the Constitution. They cannot be decided just on affidavits. These are matters which should be tried in a regular civil proceeding. One should remember that the property belongs to the Union of India and the rights in it cannot be bartered away in accordance with the sweet will of an officer or a Minister or a Lt. Governor but they should be dealt with in accordance with law. At the same time a person who has acquired rights in such property cannot also be deprived of them except in accordance with law. The stakes in this case are very high for both the parties and neither of them can take law into his own hands.”

28.

Accordingly, we hold that the question whether the purported forfeiture and cancellation of the lease were valid or not should not have been allowed to be agitated in proceedings under Article 226.

Municipal Corporation Indore Vs. State of M;P and others reported in 1972 JLJ 614

6.

Section 36 of the Indore Municipal Act, 1909 reads thus:

"36 (1) Subject to any special reservation which may be made by the Government, all property of the nature hereinafter in this section specified and situated within the limits of the Municipality shall be municipal property vested in the Commissioner on behalf of the government and shall, with all other property which may become so vested, be under his direction, management and control, and shall be held and applied by him for the purposes of this Act, that is to say:-

(a)

All public town-walls, gates, markets, slaughter houses, manure and night-soil depots and public buildings of every description which have been constructed or are maintained out of the Municipal Fund;

(b)

All public streams, springs and works for the supply, storage and distribution of water for public purposes, and all bridges, buildings engines, materials and things connected therewith or appertaining thereto and also any adjacent land (not being private property) appertaining to any public tank or well;

(c)

All public sewers and drains, and all sewers, drains, culverts and water-courses in, alongside or under any street, and all works, materials and things appertaining thereto;

(d)

all dust, dirt, dung, ashes, refuse, animal matter or filth or rubbish of any kind, or dead bodies of animals collected by the Municipal servants, from the streets, houses, privies, sewers, elsewhere, or deposited in places fixed under section 49

(e)

all public lamps, lamp posts, and apparatus connected or appertaining thereto;

(f)

all land or other property transferred to the Municipality by purchase or otherwise for local public purposes

(g)

all streets, and the pavements, stones and the other material of, and all trees, erections, materials, Implements and provided for such streets; and

(b)

all lands and open sites which are neither private property hot in possession of any department of the State.

(2)

The Government may, by notification in the Holkar Government Gazette direct that any property which has vested under sub-section (1) in the Commissioner shall cease to be so vested, and thereupon the property specified in the notification shall cease to be so so vested and the Government may pass such orders as it think t thereupon the property specified in the notification shall cease to be regarding the disposal and management of such property", Government may make the properties mentioned in this section shall vest in It is clear from this provision that subject to any reservation which the State the municipality and shall be municipal properties. Clause (h) of sub-section (1) of this section refers to open sites which are neither private properties nor are in possession of any department of the State. It cannot, therefore, be doubted, and it is also not contested, that by the constitution of the Indore Municipality under the provisions of the Indore Municipal Act, 1909, all open lands, which were neither private property and nor in possession of any particular department of the State, became municipal property and vested in the Commissioner, and in consequence all these open lands were managed, leased out and disposed of by the Indore Municipality. In 1954 the Indore Act was substituted by the M. P. Municipalities Act and section 2 and its proviso saved the Municipalities constituted under the old Act and all actions taken under that Act. Section 48 of the M. B. Act provided for vesting of the properties in a municipality, and it was as follows:

48.

All property of the nature hereinafter in this section specified, and not being specially reserved by the Government shall be vested in and belong to the municipality, and shall, together with all other property, of what nature of kind soever not being specially reserved by the Government, which may become vested in the municipality, be under their direction, management and control, and shall be held and applied by them as trustees, subject to the provisions and for the purposes of this Act, that is to say-

(a)

all public town-walls, gates, markets, slaughter houses, manure and night-soil depots, and public buildings of every description;

(b)

all public stream, tanks, reserviors, cisterns, wells, springs, aqueducts, conduits, tunnels, pipes, pumps and other waterworks, and all bridges, buildings, engines, works, materials and things "connected therewith or appertaining thereto, and also any adjacent land (not being private property), appertaining to any public tank or well;

(c)

ail public sewers and drains, and all sewers, drains, tunnels, colverts, gutters and water courses in, alongside and under any streets, all dust, dirt, dung, ashes, refuse, animal matter, filth, night-soil or rubbish of any kind collected by the municipality or by customary or private sweepers from the streets, houses, privies, sewers, cesspools, or elsewhere;

(d)

all public lamps, lamp-posts, and apparatus connected therewith, or appertaining thereto;

(e)

all lands transferred to them by the Government, or by gift or otherwise for local public purposes;

(f)

all public streets, and the pavements, stones and other materials also thereof and also all trees, erections, materials, implements and things provided for such streets."

This provision clearly indicates that the properties will continue to vest in the municipality except if any reservations are made by the Government. It is also clear from the provisions of this Act that the municipality shall apply these properties as trustees subject to the provisions and for the purposes of this Act. It cannot, therefore, be disputed that the properties that vested in the municipality under the Indore Act continued to vest in it even after the M. B. Act came into force. This Act was later substituted by the M. P. Municipalities Act, section 100 of which is as under:

"100.

(1) Subject to any special reservation made or any special conditions imposed by the State Government, all property of the nature hereinafter in this section specified within the limits of the Municipality, shall vest in and be under the control of the Council and with all other property which has already vested, or may hereafter vest in the Council, shall be held and applied by it as trustees for the purposes of this Act, that is to say-

(a)

all public town-walls, gates, markets, slaughter-houses, manure and night-soil depots and public buildings of every description which have been constructed or maintained out of the Municipal Fund;

(b)

all public streams, tanks, reservoirs, cisterns, wells, springs, aqueducts, conduits, tunnels, pipes, pumps and other water works, and all bridges, buildings, engines, works, materials and things connected with "or appertaining thereto, and also adjacent land not being private property, appertaining to any public tank or well;

(c)

all public sewers and drains and all sewers, drains, tunnels, culverts, gutters and water-courses in, alongside or under any streets and all works, materials and thing things appertaining thereto;

(d)

all dust, dirt, dung, ashes, refuse, animal matter, filth, night-soil or rubbish of any kind collected by the Council or by any customary or private sweeper from the streets, houses, privies, sewers, cesspools or elsewhere:

(e)

all public lamps, lamp-posts and apparatus connected therewith, or appertaining thereto;

(f)

all public streets, not being land owned by the State Government and the pavement, stone and other material thereof and also trees growing on and erections, materials, implements and things provided for such street.

(g)

all lands and/or other property transferred to the Council by the State Government or acquired by gift, purchase or otherwise for public purposes.

(2)

The State Government may, by notification, direct that any property which has vested in the Council shall cease to be so vested; and thereupon the property specified in the notification shall cease to be so vested, and the State Government may pass such orders as it thinks regarding the disposal and management of such property,

(3)

The State Government may resume any immovable property such property is required for a public purpose, without payment of any compensation other than the amount paid by the counsel for such and the market value at the date of resumption of any building or works subsequently erected or executed thereon by the council.

Provided that before taking any such action, the State Government shall obtain and take into consideration the view or objections of the Council:

Provided further that compensation need not be paid for buildings or works constructed or erected in contravention of the terms of the transfer."

This section clearly indicates that all property of the nature specified therein within the limits of the municipality shall vest in and be under the control of the municipality of course subject to any reservation made or conditions imposed by the State Government under the Act. It cannot be doubted that in fact these properties vested in the municipality even before this Act came into force and there is no case of any reservations or conditions prescribed by the State under the Act. it is no doubt true that the restriction provided in this section was that the properties shall be applied and held as trustees for the purposes of the Act. Clause (g) of sub-section (1) of section 100 of this Act clearly refers to the properties of the kind which are in dispute in this petition. Sub-sections (2) and (3) of this section provide the manner in which the Government can, if it so desires, take back the property which vested in the municipality under this Act. In any event, that question is not before us and it is not the case of the Government that they have chosen to act under these sub-sections of section 100. There is, therefore, no need to go into the question as to whether under sub-sections (2) and (3) of section 100 the Government could take action pertaining to the properties which had vested in the petitioner long before this Act came into force. As there is no dispute that the Government had not chosen to act under these provisions, it is not necessary for us to go into that question, and it cannot be disputed that the properties, which vested in the Indore Municipality long before the passing of this Act, continued to vest in it. Section 101 of this Act also indicates that even under the present Act transfer of certain lands with the Nazul Deportment to a municipal council is contemplated. This only indicates that where municipalities may be constituted under the provisions of this Act for the first time, it may be possible for the State to transfer such open pieces of land. This clearly shows that vesting of properties in local bodies even under the scheme of this Act is not a matter not contemplated. In 1956, M. B. Municipal Corporation Act was brought into force and later the same Act with slight modifications was enacted as the M. P. Municipal Corporation Act which came into force in 1961. Section 80 of the M. P. Municipal Corporation Act is as under:

(2)

Subject to the provisions of sub-section (1)

-a) the Commissioner may, in his discretion grant a lease of any immovable property belonging to the Corporation, including any right of fishing or of gathering and taking fruit, flowers and the like of which the premium or rent or both as the case may be, does not exceed five hundred rupees for any period not exceeding twelve months at the time:

Provided that every such lease granted by the Commissioner, other than the lease or the class in respect of which Standing Committee has by resolution exempted the Commissioner from compliance with the requirements of this proviso, shall be reported by him to the Standing Committee within 15 days after the same has been gran-ted;

(b)

within the sanction of the Standing Committee, the Commissioner may by sale or otherwise grant a lease of immovable property including any such right as aforesaid, for any period not exceeding three years at a time of which the premium or rent or both, as the case may be, for any of one year does not exceed three thousand rupees;

(c)

with the sanction of the Corporation the Commissioner may lease, sell, otherwise convey any immovable property belonging to the Corporation.

(3)

The Commissioner may-

(a)

in his discretion dispose of by sale, letting out on hire or otherwise, any movable property belonging to the Corporation not exceeding five hundred rupees in value;

(b)

with the sanction of Standing Committee, dispose of by sale, let ting out on hire or otherwise any immovable property belonging to the Corporation not exceeding five thousand rupees in value;

(c)

with the sanction of the Corporation sell, let out on hire or other-wise convey any "movable property belonging to the Corporation.

(4)

The sanction of the Standing Committee or of the Corporation under sub section (2) or sub-section (3) may be given either generally for any class of cases or specifically in any particular case,

(5)

The foregoing provisions of this section shall apply to every disposal of property belonging to the Corporation made under or for the purpose of this Act:

Provided that-

(1)

no property vesting in the Corporation in trust shall be leased, sold or otherwise conveyed in a manner that is likely to prejudically affect the purpose of the trust subject to which such property is held;

(ii)

no land exceeding twenty five thousand rupees in value shall be sold or otherwise conveyed without the previous sanction of the Government and every sale or other conveyance of property vesting in the Corporation shall be deemed to be subject to the conditions and limitations imposed by this Act or by any other enactment for the time being in force."

This provision clearly indicates and provides for a complete scheme for management of properties within the limits of the Corporation. It is, therefore, clear that this section also provides for-the-management-of-the properties that had already vested in the Corporation long before the Act came into force, Section 82 of the M. P. Municipal Corporation Act is as under:

"82.

Subject to any special reservation.made or to say special conditions imposed by the Government all property of the nature hereinafter in this section specified and situated within the city, shall wear and be under the control of the Corporation and with all other property which has already vested or may hereafter vest in the Corporation be held and applied by it for the purposes of this Act, namely that

(a)

all public gates, markets, slaughter-houses, manure and night-oil depots and public buildings of every description which have been constructed or maintained out of the Municipal Fund;

(b)

all public streams, rivers, springs, and works for the supply, storage and distribution of water for public purposes and all bridges buildings, engines, materials and things connected therewith of appertaining thereto, and also any adjacent land (not being private property) appertaining to any public tank or well;

(c)

all public sewers and drains, and all sewers, drains, culverts and water-courses in or under any public street or constructed by or for the Corporation alongside any public strect, and all works, mate rials and things appertaining thereto;

(d)

all dust, dungs, ashes, refuse, animal matter, or filth or rubbish of of any kind, or dead bodies of animals, collected by the Corpora tion from the streets, houses, privies, sewers, cess-pools or elsewhere or deposited in places fixed by the Corporation; appertaining thereto; (e) all public lands, lamp-posts and apparatus connected therewith or

(f)

all land or other property transferred to the Corporation by the Government or acquired by gift, purchase or otherwise for local public purposes;

V(g) all public streets, not being land owned by the Government and the pavements, stone and other material thereof and also trees growing on, and erections, materials, implements and thing provided for such streets;

all open lands which are neither the property of any person nor of the Government."

This provision makes it clear that all properties in the nature specified therein vested in the Corporation and shall be under the control and management of the Corporation except subject to certain reservations, and sub-clause (h) of this section refers to all open lands which are neither the property of any person nor of the Government, a provision more or less similar to sub clause (h) of section 36 of the Indore Municipal Act, 1909. Consequently it cannot be doubted that under this provision all open lands, which were not private properties and are also not the properties of any department of the Government, shall vest in the Corporation. Apart from the fact, in the case of the petitioner these properties had already vested in the petitioner long before this Act came into force. It cannot, therefore, be doubted that all open lands within the limits of the Corporation, which are not private lands, continued to vest in the petitioner, and the petitioner had the power and authority under this Act as indicated in section 80 to deal with these lands.

7.

What is contended on behalf of the respondents is that what had vested in the petitioner is not the absolute property rights. It is in substance contended that the ownership rights have not been vested in the municipality or the Corporation but only the power of management has been entrusted to il under the respective statutes, and as the Government happens to be the owner of the lands, it is entitled to withdraw the power of management conferred on the local bodies. Reliance in this respect was placed on section 57 of the M. P. Land Revenue Code, which is as under:

57.

(1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all ment: sub-soil Provided that nothing in this section shall be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property. (2) Where a dispute arises between the State Government and any person in respect of any right under sub-section (1) such dispute shall be decided by the Sub-Divisional Officer. (3) Any person aggrieved by any order passed under sub-section (2) may institute a civil suit to contest the validity of the order within a period of one year from the date of such order, (4) Where a civil suit has been instituted under sub-section (3) against any order, such order shall not be subject to appeal or revision."

C. State of M.P. v. Hukumchand Mills Ltd., 2018 SCC OnLine MP 1175 : (2018) 4 MP LJ 467 at page 474

“PART I THE HOLKAR SIRKAR GAZETTE JUNE 18, 1917

Home Department.

Notification.

It is notified for general information that His Highness the Maharaja in Hazur Shri Shankar Order No. 214 dated 19-5-17, is pleased to accord sanction to the transfer to the District Municipalities of all lands and open sites that lie within the Municipal limits of the towns where Municipalities have been established, but which are neither the private property nor are in possession of the Revenue Department or any other departments of the State.

29.

In terms of the proviso to sub-section (1) above, the right which were existing on the date of coming into force of the Code were unaffected and substantive provision contain in section 57(1) did not nullify such right. Undisputely present case relates to rights existing prior to introduction of Code, hence section 57 will have no effect on such rights.

D . Vashu Deo v. Balkishan, (2002) 2 SCC 50 : 2002 SCC OnLine SC 66 at

page 57

6.

We now proceed to examine whether the appellant could have directly attorned to the owner Trust bypassing the respondent-tenant on 1-4-1983, relying on the event of institution of suit for eviction by the owner Trust against the respondent-tenant on 30-3-1983 and whether the said event enables successfully raising of the plea of respondent-tenant's eviction by paramount title, bringing the obligation of the appellant sub-tenant to deliver possession over the tenancy premises to the respondent and to pay rent to him till that date. Under Section 108 clause (q) of the Transfer of Property Act, in the absence of contract or local usage to the contrary, it is an obligation of the tenant to put his lessor into possession of the property on the termination of the lease. Section 116 of the Evidence Act, which codifies the common law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features: (i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy; (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant. The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case. Rule of estoppel which governs an owner of an immovable property and his tenant would also mutatis mutandis govern a tenant and his sub-tenant in their relationship inter se. As held by the Privy Council in Currimbhoy & Co. Ltd. v. L.A. Creet [AIR 1933 PC 29 : 60 IA 297] and Bilas Kunwar v. Desraj Ranjit Singh [AIR 1915 PC 96 : 42 IA 202] the estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. It follows that the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord's title having been extinguished by his landlord's eviction by a paramount title-holder. Eviction by paramount title-holder is a good defence bringing to an end the obligation of the tenant to put the lessor in possession of the property under Section 108(q) of the Transfer of Property Act. The burden of proving eviction by title paramount lies on the party who sets up such defence.

E. Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, Ltd.,

1937 SCC OnLine PC 54:(1937) 46 LW 201:(1936-37) 64 IA 311:(1937) 39 Bom LR 1034:1937 All LJ 1389:AIR 1937 PC 251:(1937) 2 Mad LJ 286:1937

The section does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. It deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation. Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside S. 116 altogether; and it may well be that as in English law the estoppel in such cases proceeds upon somewhat different grounds and is not wholly identical in character and in completeness with the case covered by the section. The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise—which is the case before the Board on this appeal—the section applies against the lessee, any assignee of the term and any sublessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who “let the tenant in” as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end.

In the present case therefore the defendant company could not dispute that the Raja in 1912 had title to the property demised and this merely by reason of their position as assignees of the term. There is no ground whatever for the notion that Radha Ballav did not get possession or never had more than what in English law was called an interesse termini. He entered under the lease and he and his assigns have occupied and paid rent under it for years. An inquiry whether the defendant company when they took their assignment in 1914 were or were not then in possession has in their Lordships' view no bearing whatever upon the application of S. 116 or on the rights of the parties. It is quite true that in this particular case the assignment by the lessee to the defendant company was part of a compromise to which the Raja was a party. But the defendant company took no new title from him: they took the title of his lessee: though the Raja as a party to the compromise was precluded from denying that the original term was now vested in them. “The tenancy” under S. 116 does not begin afresh every time the interest of the tenant or of the landlord devolves upon a new individual by succession or assignment. In India, where tenants may have occupancy right, and permanent or unlimited tenures are well known, the application of S. 116 may not always be clear; but the present case raises no difficulty, and there being no dispute as to the plaintiff's derivative title it seems profitless to inquire into the position as at 1914 when the landlord was not purporting to pass any title.

F. Vivekanand Kendra Vs. Pradeep Kumar Agrawal reported in 2026 SCC

Online SC 316 para 20. 20. Thus, in the case at hand, the reason for ignoring literal construction is not convincing to us. We note that interpreting intention through purposive construction or through ex-post facto circumstances is unnecessary when the intention is understood from the plain and ordinary meaning of the text. There is no doubt that the nomenclature alone of the document is not the decisive factor of the nature of a document; it is the text and the context that point to the obligations undertaken by the parties to a written document. In the case at hand, the document's nomenclature, text and context lead to only one conclusion: that Defendant No. 1 entered into a 99-year lease deed. Thus, the unilateral cancellation, in the facts and circumstances of this case, is illegal, and it should be understood as having interfered with the right of the Plaintiff to remain in possession of the Plaint Schedule Property for 99 years. Therefore, the prayers, as made, are available and are rightly granted by the Trial and First Appellate Courts.

G. Gwalior development authority v. Bhanu Pratap singh 2023INSC393

18.

However, the fact is that the parties sitting across the table, got the lease deed executed for 18262.89 sq. meters without demur on 29th March, 2006 and the transaction stood concluded after execution of the lease deed, which was initiated pursuant to a tender floated by the appellant on 13th March, 1997 and since the lease deed was to be compulsorily registered under Section 17 of the Registration Act, 1908, it was nowhere open to be altered or amended even by the High Court in exercise of its jurisdiction under Article 226 of the Constitution.

20.

The submission made by the respondent that the tender floated by the appellants on 13th March, 1997 was called upon to the bidders to submit their bid for 27887.50 sq. meters and which could not have been segregated, more so after the bid has been finalized @Rs. 725/- per sq. meter and that alone has been taken care of by the High Court by directing to execute the lease deed for the remainder of the land, in our considered view, is bereft of merit for the reason that so far as the tender floated by the Authority on 13th March, 1997 is concerned, the transaction was concluded on execution of the lease deed executed without demur for 18262.89 sq. meters on 29th March, 2006 and after the transaction is concluded and the instrument being registered under the law, it was not open to either party to question at least in the writ jurisdiction of the High Court under Article 226 of the Constitution and the mandamus issued by the High Court to execute the lease deed for the remainder of the area without any consideration is completely contrary to the settled principles of law and deserves to be set aside.

H. Muhammad Hassan v. Baidya Nath Sahay, 1939 SCC OnLine Pat 158 : AIR 1940 Pat 140

2.

In second appeal two points have been taken by Mr. Mitter on behalf of the defendants-appellants. First, it has been argued that the plaintiff in this case had waived his right to claim forfeiture of the lease. It is said that as there were previous arrears which apparently have never been paid, the plaintiff has waived for ever his right to re-enter. In short, the argument amounts to this, that if a landlord is a little indulgent to his tenant, he loses for ever the right to enforce a forfeiture clause in the lease. It is true that if after the landlord is aware of a cause of forfeiture he by some act recognizes the lease, he waives his right to claim forfeiture for that particular breach. For example, if there is a right of forfeiture in the lease for non-payment of rent and after the right to claim forfeiture has arisen, the landlord demands the rent and thus acknowledges that the lease is subsisting, it can be said that the landlord has waived the forfeiture. That, however, does not mean that he for ever waived his right to claim a forfeiture. Waiver would only operate in respect of a particular breach.

3.

In the present case, it may be that the plaintiff or his predecessor waived the right to claim forfeiture for the earlier arrears; but there is nothing whatsoever to show that the plaintiff had ever acknowledged the lease to be subsisting after the arrears now complained of occurred. As I have pointed out, the notice served shows that the plaintiff no longer regards the lease as subsisting and has claimed forfeiture of it. There is nothing whatsoever to suggest that the parties ever agreed that future rights under this lease should be waived. In my view, both the Courts below were right in holding that the plaintiff had not waived his right to forfeit the lease for the arrears complained of in this suit. The second and more substantial point taken in this appeal is that the landlord has no right under the Bengal Tenancy Act to claim a forfeiture for non-payment of rent. It was argued in the Court below that this lease was not a lease falling within the Bihar Tenancy Act; but in my view this is a lease governed by that Act. Its very terms show that it was in the nature of an agricultural lease which would fall within the Act. On behalf of the appellants it has been argued that there can be no ejectment for nonpayment of rent under the Bihar Tenancy Act by reason of Ss. 10, 65 and 178(1)(c). Had there been no other provisions in the Act, the appellants' contention would be well founded; but unfortunately for them s an express provision dealing with this case, namely S. 179 of the Act. That Section is in these terms:

Nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently settled area from granting a permanent mukarrari lease on any terms agreed on between him and his tenant.

I. Talbot and Co. v. Haricharan Halwasiya, 1949 SCC OnLine Cal 130 : AIR 1952 Cal 47 at page 51

20.

Waiver of past breaches in my judgment does not preclude the lessor from enforcing a forfeiture when the same or any other condition is ‘subsequently’ broken, it being understood that the condition is such that the breach thereof provides for re-entry. It is argued on behalf of the defendants in this case that the plaintiffs had given their consent in writing for subletting a portion of the said premises to Walford Transport Ltd. That does not mean in my opinion that the lessee could go on subletting the premises to other persons or parties in breach of the covenant. As Harries, C.J. in a decision of the Patna High Court ‘Md. Hasan v. Baidyanath’, AIR (27) 1940 Pat 140 points ??? that waiver of a particular breach does not ??? waiver for ever. I respectfully follow that decision.

21.

It is necessary to observe in more specific detail the case of a breach of the express condition against subletting providing for re-entry such as the one in the present case before me. It has been argued that subletting is an act of a continuing nature and that where the breach is of a continuing nature waiver of a particular breach is a waiver for ever. I am unable to accept that argument. In my judgment where the breach is of a continuing nature the continuance of the breach after the waiver will justify a forfeiture and it will not be open to the lessee to say that because past breaches of the same condition have been waived its future breaches, or continuing breaches after waiver are also to be deemed to have been waived and condoned. The only limitation on this principle is that in the case of the breach of a condition not to sublet the waiver operates during the continuance of the entire period of the interest which the particular subletting created. But when the entire period of the offending sub-lease is over the past waiver will not protect fresh breach of the same covenant not to sublet. Formerly express waiver for a particular breach was regarded as a total waiver of the covenant itself. But that is usually regarded in this breach of the law as a relic of ‘Dumpor's case’, (4 Co. Rep. 119a). It is needless for me here to say that ‘Dumpor's case’ has never been followed in India. In other words a waiver of the benefit of a covenant or condition in a lease only extends to the particular breach of the covenant or condition to which it relates and is not a general waiver of the benefit of that covenant or condition.

Garvit Khandelwal vs The State Of Madhya Pradesh reported 2022 SCC Online MP 1344

18.

Likewise, section 2 (31) of the Municipal Corporation Act,1956 also defines 'the land' which includes benefits arising out of land, houses and things attached to the earth. Section 7 of the Act of 1956 provides the constitution of Municipal Corporation and there shall be constituted a Municipal Corporation for a larger Urban area in accordance with the provisions of this Act. Section 135 of the Act of 1956 provides the imposition of Property Tax by the Municipal Corporation. Land which has been included in the Municipalities or the Municipal Corporation as the case may be is subjected to the imposition of taxes as it no more remains the land of the village. There are no provisions for charging land revenue on such land under the Act of 1956 or the Act of 1961, as provided in Adhiniyam,1993. The land within the village area forming the Gram Panchayat is liable to be entered in the land record maintained by the Revenue Authorities under the M.P. Land Revenue Code, 1959 . Once the village has been included into the Municipalities or the Municipal Corporation as the case may be, it ceases the status of the village, hence, there would be no need to maintain the Khasra Panchshala or other land Records by the Revenue Authorities for such land. All these lands are subjected to the property tax and other tax payable under the Municipalities Act as well as Municipal Corporation Act, therefore, the Government is directed to examine as to why all revenue authorities are maintaining the land record of those land which are no more in the village and are included into municipalities or Municipal Corporation. A copy of this order be sent to the Advocate General of State of M.P., Principal Secretary of the Department of Revenue for taking necessary action.

19.

Till than so far as the land situated in other than village area, but the land records are being maintained by the Revenue Authorities of the respective areas, such records are also liable to be corrected or updated by the Revenue authorities under M.P. Land Revenue Code, 1959. In some urban areas where land is within the limits of Local Bodies like Municipal Corporation or Municipal Councils / Nagar Parishad still, the land records are being maintained by the revenue authorities despite that no agricultural activities are going on there hence such records are liable to be corrected or updated despite the nature of the land.

Union Of India And Ors vs Dev Raj Gupta And Ors reported in (1991) 1 SCC 63

The High Court is further not right in holding that there was an automatic or a statutory conversion of the user of the land because in the Master Plan the land in question fell in the area reserved for commercial use. The High Court failed to appreciate that the charge of user of the land permitted by the Plan was only enabling in nature. It lifted the restriction which was otherwise there for using the land for commercial purpose. The land has to be used as per the agreement between the contracting parties, and no change of the user can be made contrary to the agreement even if the Plan permits such user. The Plan helps the parties to change the user, if the parties mutually agree to do so. It does not permit the occupant to change the user unilaterally. It is not, therefore, correct to say that no permission of the landlord was reeded to change the user of the land.

Apollo Zipper India Limited vs W. Newman And Co. Ltd reported in (2018_ 6 SCC 744

It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the Rent Laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.

Jyoti Sharma Vs. Vishnu Goyal reported in 2025 SCC Online SC 1956

True, the proceedings for probate was itself initiated in the year 2015 after the appeal was decided on remand by order dated 13.10.2009. The order in probate was issued when the matter was pending fore the High Court. It is pertinent, as seen from the order of the trial court that the deceased Ramji s had left behind other legal heirs also, his wife, three daughters and the wife and children of a ceased son. None of them had challenged the Will when the matter was pending before the trial urt. ne of the grounds taken by the trial court to suspect the Will was that though it is mentioned in e Will that the daughters of the testator were married of with their shares and even the wife and ildren of the deceased son had no interest in the property, nothing was kept aside for the wife. The nding of the trial court that it is not natural that a person would not keep in mind the interest of his n wife, according to us, is not a valid ground to suspect the intentions of the testator or the probity of he bequest made. In any event, when an order of probate was produced, which is not mandatory, e claim of the plaintiff through a Will attains a legal sanctity which could not have been brushed ide y the High Court. It is trite Page 6 of 10 CA @ SLP (C) No.29500 of 2024 that in a suit for iction, the proof of ownership of the tenanted premises is not to be strictly looked at as in a suit for claration of title

Arnit Das vs State Of Bihar reported in (2000) 5 SCC 488

A decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not ratio decidendi. This is the rule of sub-silentio, in the technical sense when a particular point of law was not consciously determined. (See State of U.P. Vs. Synthetics & Chemicals Ltd. 1991 (4) SCC 138, para 41).

"Writ of Certiorari

6.

According to Corpus Juris Secundum (Vol.14, page 121) certiorari is a writ issued from a superior court to an inferior court or tribunal commanding the latter to send up the record of a particular case.

7.

H.W.R. Wade & C.F. Forsyth define certiorari in these words :-

"Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed – that is to say, it is declared completely invalid, so that no one need respect it.

The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion."(Administrative Law, Eighth Edition, page 591).

8.

^{he learned authors go on to add that problem arose on exercising control} over justices of the peace, both in their judicial and their administrative functions as also the problem of controlling the special statutory body which was addressed to by the Court of King's Bench. "The most useful instruments which the Court found ready to hand were the prerogative writs. But not unnaturally the control exercised was strictly legal, and no longer political. Certiorari would issue to call up the records of justices of the peace and commissioners for examination in the King's Bench and for quashing if any legal defect was found. At first there was much quashing for defects of form on the record, i.e. for error on the face. Later, as the doctrine of ultra vires developed, that became the dominant principle of control" (page 592).

9.

^{The nature and scope of the writ of certiorari and when can it issue was} beautifully set out in a concise passage, quoted hereafter, by Lord Chancellor Viscount Simon in Ryots of Garabandho and other villages Vs. Zamindar of Parlakimedi and Anr. – AIR 1943 PC 164.

1.

^{"The ancient writ of certiorari in England is an original writ which} may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should "be certified" of the proceedings to be investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior "Courts" in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's Superior Courts, and in particular the Court of King's Bench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and operates, within certain limits, in British India."

10.

Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well-settled. It would suffice for our purpose to quote from the 7-Judge Bench decision of this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors. – (1955) 1 SCR 1104. The four propositions laid down therein were summarized by the Constitution Bench in The Custodian of Evacuee Property Bangalore Vs. Khan Saheb Abdul Shukoor etc. – (1961) 3 SCR 855 as under :-

1.

^{"……the High Court was not justified in looking into the} order of December 2, 1952, as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the Constitution for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233) and the following four propositions were laid down :-

"(1)

Certiorari will be issued for correcting errors of jurisdiction;

(2)

Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;

(3)

The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.

(4)

An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."