Shyam Lal v. Deepa Dass Chela Ram Chela Garib Dass

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4245 of 2012. From the Judgment and Order dated 28.06.2010 of the High Court of Punjab and Haryana at Chandigarh in R. S. A. No. 3785 of2009. P. H. Parekh, Sr. Adv., E. R: Kumar, Kshatrshal Raj, Ms. Ritika Sethi, Vishal Prasad, (For Mis. Parekh & Co.), Ad vs. for the Appellant. Manoj Swarup, Ankit Swarup, Ms. Tanya Swarup, Rohit Kumar O Singh, Advs. for the Respondent. The Judgment of the Court was delivered by RANJAN GOGOi, J.

1This appeal is at the instance of the tenant who is aggrieved by an order of eviction affirmed by the High Court following the expiry of period of lease. A two-Judge Bench of this Court in Sukhdev Singh (Dead) through legal representatives and Ors. V. Puran and Ors. 1 has taken the view that a tenant under Punjab Security of Land Tenure Act, 1953 (hereinafter referred to as the '1953 Act') ceases to be one on expiry of the fixed term tenancy under the contract whereafter he is not en.titled to the statutory protection from eviction as envisaged under the Act. A Co-ordinate Bench, for reasons indicated, could not agree with the aforesaid view iG-Suklulev Singh (supra). Hence this reference for an answer on a question that may be formulated as hereunder: Whether after the expiry of the fixed term tenancy in respect of an agricultural lease under the Punjab Security of Land Tenure Act, 1953 (hereinafter referred to as "the 1953 Act") the tenancy gets automatically terminated and the person occupying the leased premises ceases to be a tenant? 1 c201si 12 sec 344

2It will be useful to notice, at this stage, some of the relevant provisions of the Statutes dealing with the issue. "Tenant" is defined by Section 2(6) of the 1953 Act in the following terms: "Tenant" has the meaning assigned to it in the Punjab Tenancy Act, I 887 (Act XVI of 1998), and includes a sub-tenant, and selfcultivating lessee, but shall not include a present holder, as defined in section 2 of the Resettlement Act."

3Section 4(5) of the Punjab Tenancy Act, 1887 (hereinafter referred to as "the 1887 Act") defines "tenant'' as under: "

4Definitions- In this Act, unless there in something-t;epugnant in the subject or context,- xxxx (5) "tenant" means a person who holds land under another person, and is or but for a special contract would be, liable to pay rent for that land to that other person; but does not include - (a) an inferior landowner, or (b) a mortgagee of the rights of a landowner, or (c), a person to whom a holding has been transferred, or an estate or holding has been let in farm under the Punjab Land Revenue Act 1887 (XVII of 1887), for the recovery of an arrear of land revenue or of a sum _recoverable as such an arrear or ( d) a person who takes from the Government a lease ofunoccupied land for the purpose of subletting it." 4. The 1887 Act confers occupancy rights on the occupants of land who fulfill the requirements spelt out by s'ection 5 thereof. An occupancy tenant is liable forejectment under the 1887 Acton the grounds specified in Section 39(1 ), namely, (a) that he has used the land comprised in the tenancy in a manner which renders it unfit for the purpose for which he held it; (b) where rent is payable in kind, that he has without sufficient cause failed to cultivate that land in the manner or to the extent customary in the locality in which the land is situate; (c) when a decree for an arrear ofre11t in respect of his tenancy has been passed against him and remains unsatisfied.

5On the other hand, under Section 40 of the 1887 Act, a tenant who does not have a right of occupancy but holds the land for a fixed term under a contract is liable to be ejected from his tenancy on the expiry of the term of the lease and before such expiration on the following grounds: "(a) that he has used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it; (b) where r(\Jlt is payable in kind, that he has without sufficient cause failed to cultivate that land in the manner or to the extent customary in the locality in which the land is situate ; ( c) on any ground which would justify ejectment under the contract decree or order."

6Section 9 of the 1953 Act which deals with the liability of a tenant to be ejected is in the following terms: "

9Liability of the tenant to be ejected.- (!)

Notwithstanding anything contained in any.other law fot the time being in force, no land-owner shall be competent to eject the tenant except when such tenant - (i) is a tenant on the area reserved under this Act or is a tenant of a small land-owner, or (ii) fails to pay rent regularly without sufficient cause, or (iii) is in arrears ofrent at the commencement of this Act, or (iv) has failed, or fails, without sufficient cause, to cultivate the land comprised in his tenancy in the manner or to the extent customaryjn the locality in which the land is situate, or {v) has used, or uses, the.land comprised in his tenancy in a manner which has rendered, or renders it unfit for the purpose for which he holds it, or (vi) has sublet the tenancy or a part thereof, provided that where only a part of the tenancy has been sublet, the tenant shall be liable to be ejected only from such part, or (vii) ref.ujes to execute a Qabuliyat or a Patta, in the form DASS [RANJAN GOGOi, J.] prescribed, in respect of his tenancy on being called upon to do so by an Assistant Collector on an application made to him for this purpose by the land owner Explanation - For the purposes of clause (iii), a tenant ·shall be deemed to be in arrears of rent at the commencement.ofthisAct, only ifthe payment of arrears is not made by the tenant within a period of two months from the date of notice of execution of decree or order, directing him to pay such arrears of rent.

(2)] Notwithstanding .anything contained hereinbefore a tenant shall also be liable to be ejected from any area which he holds in any capacity whatever in excess of the permissible area; Provided that the portion of the tenancy from which such tenant can be ejected shall be determined at his option ifthe area of his tenancy under the land-owner concerned is in excess of the area from which he can be ejected by the said land owner; Provided further that ifthe tenant holds land of several landowners and more than one land-owner seeks his ejectment, the right to ejectment shall be exercised in the order in which the applications have been made or suits have been filed by the landowners concerned, and in case of simultaneous applications or suits the priority for ejectment shall commence serially from the smallest land-owner.

Explanation.- Where a tenant holds land jointly with other tenants, only his share in the joint tenancy shall be taken· into account in computing the area held by him." 7. It.will be necessary at this stage to take note of Section 14A of the 1953 Act which deals with, the procedure for ejectment: "14-A. Notwithstanding anything to the contrary contained in any other law for the time being in force, and subject to the provisions of section 9-A.- (i) a land owner desiring to eject a tenant under this Act shall · G apply in \~Titing to the Assistant Collector First Grade having jurisdiction; who shall theteafterproceed as provided forin subsection (2) of sub-section 10 of this Act, and the provisions of sub-section (3) of the said section shallalso apply in relation to such application, provided that the tenants rights to compensation and acquisition of occupancy rights, if any under the Punjab Tenancy Act, 1887 ( XVI of 1887), shall not be affected;

Provided that if the tenant makes payment of arrears of rent and interest, to be calculated by the Assistant Collector, First Grade, at eight per centum per annum on such arrears together with such costs of the application, if any, as may be allowed by Assistant Collector, First Grade, either on the day of first hearing or within fifteen days from the date of such hearing, he shall not be ejected (ii) a land-owner desiring to recover arrears ofrent from a tenant shall apply in writing to the Assistant Collector Second Grade, havingjurisdiction, who shall thereupon send a notice in the form prescribed to the tenant either to deposit the rent or value thereof , if payable in kind or give proof ofhaving paid it or of the fact that he is not liable to pay the whole or part of the rent or of the fact of the landlords refusal to receive the same or to give a receipt, within the period specified in the notice.

Where, after summary determination, as provided for in sub-section (2) of Section I 0 of th is Act, the Assistant Collector finds that the tenant has not paid or deposited the rent he shall eject the tenant summarily and put the landowner in possession of the land concerned; (iii) (a) if a landlord refuses to accept rent from his tenant or demands rent in excess of what he is entitled to under this Act, or refuses to give a receipt, the tenant may in writing inform the Assistant Collector second Grade, havingjurisdiction of the fact; (b) on receiving such application, the Assistant Collector shall by a written notice require the landlord to accept the rent payable in accordance with this Act, or to give a receipt, as the case maybe, or both, within 60 days of the receipt of the notice" 8. Before proceeding any further it must be clarified that both the enactments i.e. the 1887 Act and the 1953 Act are in force and continue to operate in their respective fields.

Insofar as common spheres are concerned, the 1953 Act by virtue of the 11011 obsta11te clause in the relevant provisions prevail over the pari materia provisions of the 1887 Act. Section 40 of the .1887 Act dealing with ejectment of tenants and Section 9 of the 1953 Act is one instance where such an interplay between the provisions of the two Acts occur. 9. The arguments advanced on behalf of the rival parties relate to a true and proper construction of the provisions of Section 9 and 14-A of the 1953 Act in the light of the definition of"tenant" under both the Acts and also the provisions of Section 39 and 40 of the 1887 Act. It is argued that the appellant herein is a selfccultivating lessee and, therefore, a tenant under Section 2(6) of the 1953 Act entitling him to protection under Section 9 of the Act. A person who is a.tenant under the 1953 Act can be ejected only on any of the grounds enumerated in Section 9 of the 1953 Act.

Such protection does not cease merely on the expiry of period of tenancy in view of the statutory protection granted under the Act. In fact the contractual tenancy loses all relevance in case of a lessee who is a tenant under either of the statutes in question. Though under Section 40 of the 1887 Act eviction of a tenant on completion of the period of lease is contemplated, there is no such provision in the 1953 Act. The non obstante clause in Section 9 gives the said provision of the 1953 Act an overriding effect over the aforesaid provisions of the 1887 Act. Sub-section (viii) of Section 9 of the Act of 1953, introduced by Punjab Act 17of2011 (not made applicable to the State of Haryana) has also been placed before the Court. Besides, the procedure for · ejectment/eviction must necessarily conform to what is spelt out in Section 14-A of the 1953 Act and proceedings for eviction must be before the Reven.ue authority and not ttie Civil Court.

These are the broad propos,itions that have been advanced on behalf of the appellant to answer the question aris.ing.

10In reply,it is contended that statutory protection to a t((nant would be available after the expiry of the fixed term lease only if the definition of tenant under the Act is broad enough to include a person whose contractual period of tenancy is o~r. No such provision. exists either under the 18.87 Act or the 1953 Act. The definition of tenant.in either of the Statutes does not include a tenant whose period of tenancy is over. In the absence of any such provision, a person whose period of lease is over ceases to be a tenant and, therefore, is not entitled to the protection under the 1953 Act. A selfcultivating lessee would be a tenant under the Act only for the duration of the lease. On expiry of the period of the lease he would cease to be a tenant unless the statute specifically provides for such a status which is not so provided for by either of the Acts i.e. Act of 1953 and of 1887.

11In the present case, admittedly, eviction of the tenant had not been sought on any of the grounds enumerated in Section 9 of the 1953 Act and by following the procedure under Section 14-A of the 1953 Act. In fact, it is the appellant before this Court who had filed a suit for injunction seeking a restraint on his ouster and it is in the said suit that the respondent - landlord, as the defendant, had filed a cross-objection seeking mandatory injunction for the vacation of the premises by the appellant-tenant on the ground that he had ceased to be a tenant on expiry of the period oflease.

12Having noticed the elaborate arguments advanced on behalf of the parties, we may now proceed to deal with the specific question referred to us, as noticed above, and in this regard take note of the questions formulated by the High Court for an answer in the second appeal before it which is in the following terms- (i) Whether a tenant/lessee of agricultural land can be ordered to be evicted by way of suit for mandatory injunction or the only remedy with the landlord is to seek eviction under the provisions ofthe Punjab Security of Land TenuresAct, 1953 (ii) Whether the lease deed of an agricultural land is admissible in evidence in the absence ofregistered instrument as required under Section 107 of the Transfer of Property Act, 1882 and Section 17 of the Registration Act, 1908.

13The Transfer of Property Act, 1882, as evident from opening provision thereof, makes it Clear that it is not to be applicable to the State of Punjab (including the present State ofHaryana which was included in the erstwhile State of Punjab). However, by a Gazette Notification dated 261h March, 1955 (No. I 605-R(CH)-55/589) published in the Punjab Govt. Gazette dated 1st April, 1955 (Part I, page 3 72) the provisions of Sections 54, 107 and 123 of the Transfer of Property Act, 1882 were extended to the entire State of Punjab with effect from 1st April, 1955. The Gazette Notification in question reads as follows: "The 26'h March, 1955 No.1605-R(CH)-55/589. In exercise of the powers conferred by section 1 of the Transfer of Property Act, IV of 1882, and all other powers enabling him in this behalf, the Governor of Punjab is pleased to extend the provisions of sections 54, 107 and 123 of the said Act with effect from the 1" April, 1955 to the entire State of Punjab. The Punjab Government DASS [RANJAN GOGOI, ~.] notification No.183-ST dated the 27'h April, 1935, is hereby cancelled."

14Sections 54, 107 and 123 of the Transfer of Property Act, 1882 were applied to the PEPSU area of that State with effect from 15'h May, 1957 by Notification dated 15'h May, 1957 published in the Punjab Government Gazette (Extraordinary) (at page 633 dated 15'h May, 1957), which is in the following terms: "Punjab Government Gazette Extraordinary Published by Authority Chandigarh, Wednesday, May 15, 1957 Revenue Department Notification The 15'h May, 1957 No.305-ST-57/2166.- In exercise of the powers conferred by section 1 of the Transfer of Property Act, 1882 (Central Act IV of 1882), and all other powers enabling him in this behalf, the Governor of Punjab is pleased to extend the provisions of Sections 54, 107 and 123 of the said Act to the territories which, immediately before the 1st November, 1956, were comprised in the State of Patiala and East Punjab States Union, with effect from the date of publication of this notification in the official Gazette."

15Section 107 of the Transfer of Property Act, 1882 which has been made applicable to the State of Punjab (including Haryana) by the above notifications require annual leases of immovable property to be made by a registered instrument. Though Section 117 of the Transfer of Property Act, 1882 makes the provisions of Chapter V, which includes Section I 07, inapplicable to agricultural leases, Section 117 has not been made applicable to the State of Punjab by the notifications referred to above. Therefore, the provisions of Section 107 of the Transfer of Property Act, 1882 would apply with full force and vigor to all leases of immovable property including agricultural leases in the State of Punjab (including Haryana).

16The above is inextricably connected to the issue of detennination of the primary question arising, namely, whether the lease between the parties is a fixed tenn lease or not, a question that would depend for its answer on the terms of the lease deed between the parties. Unfortunately and regrettably the Gazette Notifications referred to above were not brought to the notice of the High Court leading the High Court to answer the question framed by holding that Section 117 of the Transferof Property Act makes the provisions of Section I 07 inapplicable to an agricultural lease and therefore the tenns of the lease can be looked into for a determination of the above question.

17It is not in dispute that in the present case the appellant tenant remained in possession of the land for the fixed term envisaged in the lease agreement i.e. from 291h May, 1996 to 281h May, 2005 and even thereafter. As the lease in question was not a registered instrument and as Section 117 of the Transfer of Property Act has no application to the State ofHaryana, in view of the provisions of Sections 17 and 49 of the Registration Act read with Section 107 of the Transfer of Property Act, 1882 the terms of the lease deed would not be admissible in evidence and, therefore, cannot be looked into for the purpose of detennining the duration of the lease. Though in Anthony v. K.C. Ittoop & Sons & Ors.= it was held that in such a situation a oral lease not exceeding one year can be presumed it must not be lost sight that in Anthony ($upra) the lease in question was one under the Ke_rala Buildings (Lease and Rent Control) Act, 1965, namely, a non-agricultural lease. In the present case, the leas_e being admittedly ;m agricultural lease the same can be deemed to be from year to year in view of the provisions ofSe~tion 106 of the Transfer of Property Act.

18If the lease in the instant case has to be deemed to be a lease from year to year and the terms thereof cannot be looked into to determine the total duration thereof whafwould follow is that the tenant remained in possession beyond the legally presumptive period of the lease (one year) with the implied consent of the landlord. In the present case such consent ceased to exist only upon institution of the cross objection in the suit filed by the tenant, as mentioned earlier. The tenant, therefore, acquired the status of a tenant holding over or a tenant at will, which would confer on him protection under the 1953 Act requiring the landlord to establish proof of any of the conditions specified in Section 9 of the 1953 Act before being entitled to a decree of eviction. From the above it would necessarily .follow that to be entitled to protection from eviction under the 1953 Act any person claiming such protection '(2000)

6 sec 394 · has to come within the fold of the expression "tenant" under.the 1953 Act read with the relevant provisions of the 1887 Act. Statutory protection would be available only to a statutory tenant, namely, a tenant under the Act. The Punjab Act of 1953 read with the relevant provisions of the 1887 Act do not include a tenant whose lease has expired. Nevertheless, retention/continuance of possession after expiry of the duration of the lease with the consent of the landlord will continue to vest in the erstwhile tenant the same status on the principle of holding over. Such continuance even after expiry of the deemed period of the lease under Section 106 of the Transfer of Property Act, as in the present case, would clothe the occupant with the status of a tenant under the Act in view of Section 116 of the Transfer of Property Act which deals with the consequences of holding over.

The operation of Section 116 of the Transfer of Property Act would confer legitimacy to the possession of the tenant even after the termination or expiration of the deemed period of the lease so as to confer on him a status akin to that of a statutory tenant and hence protection from eviction as envisaged by the provisions of the Act of 1953.

19We accordingly answer the question referred in the above terms, and allow this appeal and further set aside the order of the High Court under challenge. K:ilpana K. T~ipat)ly Appeal allowed.