Banerji, J.:— This is an application for a suitable writ on behalf of the landlord to quash an order passed by the Additional Commissioner of the Patna Division setting aside an order of the Collector directing vacant possession to be given to the petitioner.

2. The facts were these. On 14-1-1953, the petitioner gave lease of a portion of his shop premises (holding No. 76, Ward No. 33 in the New Market at Patna) for a period of 11 months. The tenant, opposite party No. 4, who will be hereinafter referred as the tenant, occupied the premises on the same date and an agreement was drawn up and signed both by the petitioner and the tenant, but the same was not registered. On 13-12-1953, the term of the lease expired, and the petitioner served a notice on the tenant to quit the premises. As the tenant refused to give up possession the petitioner, on 25-5-1954, filed an application under Section 11 of the sub-section (1), cl. (b) of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947, as modified by Bihar Act 5 of 1953, hereinafter to be referred also as the Act, for eviction of the tenant on three-grounds, namely, that the term of the lease had expired; that there had been non-payment of rent for December, 1953; and that the premises were required for his personal use.

3. The tenant was asked to show cause, and in his show cause-petition he averred that the agreement was of a monthly tenancy, but under pressure it was given the shape of a lease for 11 months and that after the expiry of the previous tenancy in question, a new agreement was made between the tenant and the petitioner with effect from 15-12-1953, and the terms of the next agreement were that the tenant would occupy the premises on the basis of a monthly tenancy of Rs. 100/- per month. The other grounds taken up in the show cause petition are not necessary for determination of the controversy raised before us.

4. The Controller rejected the prayer of the petitioner for eviction of the tenant on his finding that there was an understanding of longer term of lease and it would be unfair to evict him after he had invested a large amount of money in his business. He, however, found that there was no direct evidence of fraud, duress or coercion on the part of the petitioner. The learned Controller found against the petitioner with regard to the other two grounds, namely, default in payment of rent and personal necessity.

5. An appeal was preferred before the Collector, and there the petitioner gave up his two grounds for eviction, namely, alleged default in payment of rent and necessity for personal use, but concentrated on his first ground that, when the period of lease had expired and when the tenant had not chosen to exercise his right for extension of time limited by the lease under S. 12 of the Act, he was entitled in law to evict him under S. 11(1)(b). The learned Collector found as follows:

(1) There was no cogent evidence to show a fresh agreement for extending the life of the lease.

(2) The tenant had not availed of the provisions of Act 3 of 1947 which he was bound to be if he wanted to continue as a tenant.

(3) The life of the lease having expired, the petitioner was entitled to obtain vacant possession.

6. Accordingly, he directed the tenant to give vacant possession of the premises within 60 days from his order which was dated 11-6-1955.

7. The tenant then moved the Commissioner, and the matter came to be heard by the Additional Commissioner, before whom it was argued on behalf of the tenant for the first time that, as the agreement purporting to be a lease for 11 months was unregistered, it had not created a fixed-term tenancy, but should be treated as a month to month tenancy under Section 107 of the Transfer of Property Act.

8. The learned Additional Commissioner held that it was a month to month tenancy, because (1) the document creating the lease was a bilateral one, and (2) that the recital in cl. (6) of the agreement was incompatible with a tenancy for a specified period. As a result, the order of the Collector of Patna directing the tenant to vacate the premises was set aside.

9. It would be better to set out here the relevant paragraphs of the agreement, dated 14-1-1953, which, as already stated, was signed by both the parties.

“1. That this lease is valid for a period of eleven months only from today.

2. That the lessee has taken possession of the aforesaid shop room with effect from 14-1-1953, on payment of Rs. 100/- (Rupees One hundred) only as advance for one month from 14-1-1953 to 13-2-1953.

3. That the rent is fixed at Rs. 100/- …… and the lessee shall pay the monthly rent for every month within the course of the month.

(6) That the lessor (owner of the building) or his heirs or representatives shall get the shop-room vacated at any time after giving three months' notice to the lessee, from the date of the notice and the lessee shall vacate the shop-room. And if the lessee wants to vacate the shop room he will be required to give one month's notice to the lessor.

12. That the lessee will have to deliver possession of the shop room to the lessor at the end of the period stipulated herein without any hesitation. If the lessee occupies after the expiry of the said period the occupation of the lessee will be that of a trespasser and he will be liable to pay the damage at the rate of Rs. 10/- per day for his unauthorised occupation and in case the period is further desired to be extended with consent of both the parties a fresh agreement will have to be executed.”

10. The questions which fall to be determined on the arguments advanced by learned Advocates of both sides are, therefore, as follows:

(1) Whether the provisions of Section 107 of the Transfer of Property Act can be invoked or taken in aid to interpret what is a month to month tenancy under this Act (Bihar Act 3 of 1947 as amended by Bihar Act 5 of 1953)?

(2) Whether, due to the non-registration of the agreement, it has to be shut out for determining the nature of the tenancy?

(3) Whether the order of the learned Additional Commissioner is so defective as to warrant, the issue of a writ under Article 226 of the Constitution of India?

11. Mr. Ghose, appearing on behalf of the-petitioner, has, argued that the Bihar Act creates-special rights with special restrictions foreign to the provisions of the Transfer of Property Act and, in order to determine the nature of the tenancy, the provisions of the Bihar Act have to be examined and nothing else. In short, his argument is that, in order to ascertain what is a month to month tenancy, the provisions given in Sections 107 and 106 of the Transfer of Property Act, have no relevancy, whatsoever, and that, as the Bihar Act created special authorities clothing them with special powers, they have to depend upon the provisions of the Act itself without being controlled in any way by those in Sections 107 and 106 of the Transfer of Property Act.

12. On the other hand, it has been argued, by Mr. Jadunandan Prasad, appearing on behalf of the tenant, that, although Act 3 of 1947 is a Special Statute for the protection of tenants, for which some special laws had been enacted, the Transfer of Property Act would apply up to the point when one has to consider the legal effect of non-registration of the agreement. In other-words, the creation of the tenancy, either by express provision or by implication, will be, according to him, governed by Sections 107 and 106 of the Transfer of Property Act, and, after the tenancy has been so created, the provisions of the Bihar Act would apply.

13. Section 107 of the Transfer of Property Act, contains provisions as to how leases are made, and under S. 4 of the same Act this section must be read as supplemental to the Registration Act. A lease of immoveable 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 and, according to the second paragraph of this section, namely, Section 107 of the Transfer of Property Act, all other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

14. According to Section 106 of the Transfer of Property Act, a lease of immovable property for any purpose other than agricultural or manufacturing, in the absence of a contract or local law or usage to the contrary, shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.

15. It is now settled law that a lease for a period of less than a year, if made in writing must be registered under Section 107 of the Transfer of Property Act though it is not compulsorily registerable under Section 17 of the Registration Act. See — ‘Rama Sahu v. Gowro Ratho’, 1921 Mad 337 (340) (PB) (A).

16. The term of occupation of the tenant, as evidenced by the deed of agreement in this case, is only 11 months, and, as it has been reduced into writing, it required registration, and there cannot be controversy about it.

17. The question that remains to be answered, however, is whether, when a case is governed by the provisions of Bihar Act 3 of 1947, the recitals in the deed of agreement can be taken into account to find out whether a tenancy had been created for a specified period.

18. It is difficult to accept the argument advanced on behalf of the tenant that by the operation of Section 106 of the Transfer of Property Act a month to month tenancy had been created in this case on account of non-registration of the deed of agreement, because it is hardly possible to ascertain the point up to which the provisions of the Transfer of Property Act would come into play and after which they would vanish.

19. The position becomes anomalous. On account of non-registration of the deed of agreement, the lease, so created, will be deemed to be from month to month, but, instead of being terminable on the part of either the lessor or the lessee by 15 days' notice, as provided in the second part of the first paragraph of S. 106, it would only be terminable according to S. 11 of the Act 3 of 1947.

20. It is not possible to divide this part of S. 106 into two separate compartments and to hold that one part of it applies and the other part does not. A dove-tailing of two Acts is hardly permissible.

21. A survey of the framework would show that the Bihar Act 3 of 1947 is a complete Act by itself, not dependent upon any other Act for the purpose of working out the provisions contained therein. According to S. 2(e); ‘a month to month tenant’ means a tenant holding a lease of a building from month to month or for an unspecified period. Hence, if a tenant holds a lease of a building for any period which is not specified, he will be deemed to be a month to month tenant irrespective of the term of his occupation.

22. Again, the meaning of ‘tenant’ is something which is not contemplated under the Transfer of Property Act. According to S. 2(h), tenant’ means any person by whom or on whose account rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour.

23. According to the Transfer of Property Act, the position of a tenant after the termination of the tenancy is nothing but that of a trespasser; nevertheless, according to Act 3 of 1947 he will be a tenant and is not liable to be evicted unless the requirements of S. 11 of the Act are satisfied.

24. Then, again, contrary to the provisions of the Transfer of Property Act, if a tenant in possession of a building held on a lease for a limited time intends to extend the time limited by such lease by not less than six and by not more than twelve months, he is entitled to do so after having given to the landlord a written notice of his intention one month before the expiry of the time limited by the lease.

25. According to the same section, on delivery of such notice, the said time shall, subject to the provisions of S. 11, be deemed to have been extended for the period specified in the notice. These provisions of Act 3 of 1947 appear to be untrammelled by those obtaining in the Transfer of Property Act, and, accordingly, I feel no hesitation to hold that the two Acts are distinct and their provisions should be applied independently.

26. According to Act 3 of 1947, a tenancy can be created by merely adhering to the terms contained in Cl. (e) of S. 2, that is, by acts indicative of establishing the relationship of landlord and tenant and these acts may be express or implied or may be gathered from conduct or circumstances of the parties.

27. In the present case, therefore, the Tribunals, which were created by a special statute, were authorities who were entitled in law to take into consideration the deed of agreement; in order to arrive at their conclusion whether it created a month to month tenancy or a tenancy for a specified period according to Cl. (e) of S. 2 of the Act.

28. The existence of a tenancy under this Act (Act 3 of 1947) was admitted by the tenant-opposite party in his petition to show cause against the application of the petitioner under S. 11 of the Act.

29. It was admitted in para 3 that an agreement of a monthly tenancy was given the shape of a lease for 11 months under pressure, and it was further admitted that, after the expiry of the previous tenancy in question referred to by the landlord in his eviction petition, a new agreement had been made creating a month to month tenancy with effect from 15-12-1953.

30. Before the learned Controller it was again admitted by the tenant that he had to agree to the terms of the lease in question, which was for 11 months only, as he was in need of a suitable house and the landlord gave him assurance of future occupation for a longer period.

31. Having admitted the tenancy for a specified period both in his written statement as well as before the learned Controller, it is hardly possible for the tenant to argue now that his right to occupy the building rested on the provisions of the Transfer of Property Act and not on those of Act III of 1947.

32. I am inclined to hold, accordingly, that the tenant in these circumstances is not entitled to invoke the provisions of the Transfer of Property Act for the interpretation of what is a month to month tenancy under Act 3 of 1947.

33. This Act recognises only two kinds of tenancies, that is, a month to month tenancy and a tenancy for a specified period. The tenant under this Act continues as such after the termination of the tenancy.

34. A tenant in possession who holds a lease for a limited time can extend the tenancy for a certain period only by serving a notice, and there are special laws for eviction of both types or tenants only when certain conditions are fulfilled.

35. Learned Advocate on behalf of the tenant-opposite party relies on the case of — ‘Mt. Nasiban v. Mohammad Sayed’, 1936 Nag 174 (AIR V 23) (B), for the purpose of his argument that a document purporting to grant lease of property for 11 months, which is not registered, does not operate as a lease and is inadmissible in evidence to prove the period for which the lease is granted.

36. This decision rested on the Full Bench case of ‘1921 Mad 337 (AIR V 8) (A)’. It was not a case which depended upon the interpretation of any special statute like the Bihar Act 3 of 1947, it related merely to facts to which the provisions of Section 107 of the Transfer of Property Act, applied.

37. I find, therefore, that the provisions of the Transfer of Property Act cannot be taken in aid in the circumstances of this case arising out of Bihar Act 3 of 1947, and there is no question of excluding the deed of agreement. Again even if the period of tenancy may not be proved by the deed of agreement, there is nothing in law which prevented the Tribunals created by the special statute from taking into consideration that what was admitted in the pleadings of the parties and that what was admitted in the course of the proceeding itself.

38. The Tribunal, in my opinion, apart from the question of admissibility of the deed of agreement, could under Act 3 of 1947, take into account the acts of the parties, express or implied, which were indicative of establishing the relationship of landlord and tenant under that Act and also the admissions made by them or on their behalf during the course of the proceeding.

39. In my judgment, therefore, non-resistration of the deed of agreement in this case did not debar the petitioner from establishing the period for which the tenancy was created. It was admissible in the present proceedings under Act 3 of 1947 to determine whether it was a tenancy from month to month or for a specified period.

40. In view of this opinion, the order passed by the learned Additional Commissioner can hardily be supported.

41. It has then been urged on behalf of the tenant-opposite party that the learned Additional Commissioner may have misdirected himself in law in arriving at his conclusion, but an error of law committed by a Tribunal is not an error in jurisdiction and, therefore, this Court should be tardy in issuing a writ of certiorari.

42. It has also been stressed that the order of the learned Additional Commissioner, however erroneous, is not a ‘speaking’ one and is not so grossly wrong as to justify an interference by an appropriate writ. It is true that the learned Additional Commissioner had jurisdiction to decide one way or the other and, in doing so, if he merely committed an illegality, that will be no ground for interference by this Court.

43. It has to be examined, however, whether the order is grossly wrong, that is, the error is so manifest, patent and palpable as to demand an interference. I am constrained to say that the order in this case is one which falls within this description. What is a ‘speaking’ order has now been fully dealt with in the case of — ‘Hari Vishnu v. Ahmad Ishaque’, 1955 SC 233 ((S) AIR V 42) (C).

44. The scope of the writs of certiorari has once for all been laid down clearly and elaborately, if I may be allowed to say so, in this case, and it has been held that an error in the decision or in the determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceeding, e.g, when it is based on clear ignorance or disregard of the provisions of law.

45. After discussing the English case law on the subject, especially the case of — ‘Rex v. Northumberland Compensation Appeal Tribunal; Ex parte, Shaw’, (1951) 1 KB 711 (D), it was observed as follows:

“It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record.”

46. What is an error apparent on the face of the record, that is, what is a ‘speaking’ order calling for an interference, is a question that has to be decided on the facts of each case. To my mind, a ‘speaking’ order is one which, on mere perusal, springs to one's mind as being erroneous and does not require a careful and elaborate argument to establish that there has been an error of law.

47. It must be an error which will speak for itself and will not be dependent on a laboured persuasion of some one trying to establish that the order is wrong and illegal. In the present case, the learned Additional Commissioner ignored the provisions of Bihar Act 3 of 1947 in determining the nature of the tenancy.

48. There is no law or authority to hold that, because the deed of agreement was a bilateral document, it created a month to month tenancy. He gave another reason for upholding his view and that was by taking into consideration the recital in Cl. 6 of the deed of agreement. If that clause is interpreted as he has done, then it can never be a tenancy from month to month, but, by applying the ordinary law, it will merely be a tenancy at will which was never the case of the tenant-opposite party.

49. In the case of — ‘Bidhubhusan Sen v. Commissioner, Patna Division, Patna’, 1955 Pat 496 (AIR V 42) (E), the learned Commissioned had committed an error with respect to a fact and with respect to an interpretation of the expression “his own occupation” in S. 11(3)(a) of Act 3 of 1947, and it was held that it was an error apparent on the face of the record.

50. The construction of the expression, as given by the learned Commissioner, was in the teeth of numerous decisions of different High Courts in India, and it was, accordingly, held the error of the learned Commissioner was so manifest and clear that it was an error which spoke for itself and was, therefore, amenable to a writ of certiorari. Accordingly, the order of the learned Additional Commissioner is quashed by a writ of certiorari under Article 226 of the Constitution of India. The application succeeds and is allowed with costs. The hearing fee is assessed at Rs. 100/- against opposite party No. 4 only.

Choudhary, J.:— I agree.

V.B.B

51. Application allowed.