Paramjit And Anr vs Commissioner Hisar Division ...
2022 Latest Caselaw 11788 P&H

CWP-9108-2015 and other connected cases                                1


      IN THE HIGH COURT OF PUNJAB & HARYANA AT
                     CHANDIGARH

Sr. No.201
                                                     CWP-9108-2015 (O&M)

                                                     Reserved on : 02.09.2022

                                                  Pronounced on: 21.09.2022

Paramjit and another                                           ..... Petitioners

                                     VERSUS

Commissioner, Hisar Division Hisar and others               ..... Respondents

2.                                              CWP-13541-2015 (O&M)

Parbhati Ram                                                   ..... Petitioner

                                     VERSUS
State of Haryana and others                                ..... Respondents

3.                                               CWP-4842-2015 (O&M)

Surender Kumar                                                 ..... Petitioner

                                     VERSUS

Commissioner, Hisar Division and others                    ..... Respondents

4.                                              CWP-9109-2015 (O&M)

Raj Kumar and another                                          ..... Petitioners

                                     VERSUS

Commissioner, Hisar Division Hisar and others                ..... Respondents

5.                                              CWP-9110-2015 (O&M)

Hawa Singh                                                     ..... Petitioner

                                     VERSUS

Commissioner, Hisar Division Hisar and others                ..... Respondents




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 CWP-9108-2015 and other connected cases                            2


CORAM: HON'BLE MR. JUSTICE SUDHIR MITTAL

Present:    Mr. Sanjiv Gupta, Advocate, for the petitioners
            in CWP-9108, 9109 & 9110 of 2015.

            Mr. Rajesh Sethi, Advocate with
            Mr. Tushar Gera, Advocate, for the petitioner
            in CWP-4842-2015.

            Mr. Mohan Singh, Advocate for
            Mr. Arpandeep Narual, Advocate for the petitioner
            in CWP-13541-2015.

            Mr. Samarth Sagar, Addl. AG, Haryana

            Mr. Arvind Seth, Advocate, for respondent No.3.


                                        *****

SUDHIR MITTAL, J.

This judgment will decide the aforementioned writ petitions

as similar orders have been impugned in all of them. The petitioners in

all writ petitions have been ordered to be evicted in proceedings under the

Haryana Public Premises and Land (Eviction & Rent Recovery)

Act, 1972 (hereinafter referred to as the Act) and appeal against the order

of eviction has been dismissed.

For ease of narration and writing of judgment, facts are being

extracted from CWP-4842-2015 titled as Surender Kumar Vs.

Commissioner, Hisar Division and others.

Shish Ram son of Tirkha Ram was the predecessor-in-interest

of the petitioner. He had been in possession of certain land owned by the

provincial Government as 'gair marusi' even before Independence.

Jamabandi for the year 1945-46 is on record as Annexure P-13 as

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evidence of the same. On 29.06.1977, the Government of Haryana

executed a lease deed in respect of the same land in his favour for a period

of one year and a copy of lease deed is on record as Annexure P-14. A

perusal of this lease deed shows that land was leased out for experimental

purposes. The Department of Agriculture was devising ways and means

of increasing yield of the land and cultivation was to be done strictly

under the guidance of the department. Subsequently, vide lease deed

dated 02.03.1988, the Government of Haryana leased a large chunk of

land in favour of the Haryana Agriculture University (HAU) for a period

of 99 years. Out of this land, lease of 183 acres was w.e.f. 24.06.1976

and lease of 110.5 acres was w.e.f. 11.04.1980. The land measuring

110.5 acres was under tenants and included the land in dispute. It appears

that HAU initiated proceedings for eviction of Des Raj son of Shish Ram

under the Act which resulted in passing of order of eviction dated

26.03.1991. Appeal of the tenants, however, succeeded and thus, HAU

filed CWP-14027-1991 which was allowed by a learned Single Judge

vide judgment dated 28.11.1991. Meanwhile, Des Raj had filed a civil

suit in the year 1981 against the State of Haryana and the HAU seeking a

declaration that he is a tenant on the land in dispute on payment of 1/3rd

batai and cannot be dis-possessed forcibly. The suit was decreed vide

judgment and decree dated 08.10.1994 and a declaration was granted that

Des Raj son of Shish Ram (represented by legal representatives) was

tenant at will on payment of 1/3rd batai and could not be dis-possessed

illegally and forcibly. It may be noted that in the written statement filed

on behalf of HAU, it was pleaded that yearly lease deeds were executed in

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favour of Des Raj son of Shish Ram in Kharif 1980 and Rabi 1989.

Appeal against this judgment and decree was dismissed vide judgment

and decree dated 04.09.1997 passed by the Court of Additional District

Judge, Sirsa. Prior to this decision, judgment dated 28.11.1991 passed in

CWP-14027-1991 was challenged in LPA-248-1994 & other connected

cases. The same was allowed vide judgment dated 05.12.1997 by

returning a finding that the petitioner herein and other similarly situated

persons possessed the status of 'tenant at will' by virtue of Civil Court

decree. Thus, the finding of the learned Single Judge that they were in

unauthorized possession was not sustainable in law. It was, accordingly,

set aside and liberty was granted to the HAU to terminate the tenancy in

accordance with law and then initiate fresh proceedings. It may also be

noted at this stage that Regular Second Appeal filed against the judgment

and decree passed by the Additional District Judge has been dismissed

vide judgment dated 26.11.2007 and the finding of 'tenancy at will' has

become final.

The HAU then issued notice dated 21.09.2001 under Section

106 of the Transfer of Property Act, 1882 (hereinafter referred to as the

TP Act) terminating the tenancy and filed fresh petition for eviction under

the Act. Eviction was ordered vide order dated 04.08.2004 passed by the

Collector on the ground that tenancy stood terminated by virtue of notice

dated 21.09.2001. In the same year, the Government of Haryana

transferred the lease in favour of Chaudhary Devi Lal University,

Sirsa-Respondent No.3. The petitioner and other similarly situated

tenants challenged the order of eviction by way of appeal and the

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respondents therein were State of Haryana and HAU. The appeal was

allowed vide order dated 27.07.2006 on the ground that the High Court

while passing judgment dated 28.11.1991 in CWP-14027-1991 had

specifically held that the TP Act was not applicable and therefore, notice

under Section 106 of the TP Act was no notice in the eyes of law. This

order was challenged by respondent No.3 vide CWP-9534-2008 which

was allowed because the tenant consented to the matter being remitted to

the Collector for a fresh decision. The Collector has again ordered

eviction vide order dated 08.11.2011 holding that the tenancy was for one

year only and had thus, came to an end long back. He also relied upon

notice dated 21.09.2001 issued under the TP Act. Appeal filed by the

petitioner has been dismissed vide order dated 10.06.2014 upholding the

finding of determination of lease. It has also been held that petition under

the Act was maintainable as property owned by the University was

covered under the definition of 'public premises' given in the Act and that

the petitioner was not a tenant holding over. Thus, the present writ

petition has been filed.

In reply filed on behalf of respondent No.3, reliance has been

placed upon notice dated 27.11.2001 issued under the TP Act. Execution

of lease on yearly basis from the year 1977 onwards has been admitted

and it has been stated that the land was leased for conduct of research.

This purpose has been defeated on account of endless litigation. Other

facts have not been denied and maintainability of eviction petition under

the Act has been stressed upon. It has also been pleaded that transfer in

favour of respondent No.3 was done by virtue of Notification dated

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16.04.2004 issued by the Government of Haryana. The land undoubtedly

belongs to the State of Haryana and it has the liberty to transfer it to any

department or entity.

Reply filed on behalf of the State of Haryana is similar to the

reply filed on behalf of respondent No.3.

Learned counsel for the petitioners has argued that transfer in

favour of respondent No.3 was made by virtue of memo dated

16.04.2004. The said memo was signed on behalf of the Financial

Commissioner & Principal Secretary to Government of

Haryana, Agricultural Department. According to the Standing Order

No.28 of the Financial Commissioner, transfer can be made only by the

Financial Commissioner (Revenue) and thus, the transfer order is without

jurisdiction. No transfer took place in favour of Respondent No.3 and the

said respondent was not competent to file the petition under the Act.

Moreover, the Financial Commissioner (Revenue) can only transfer land

from one Government department to another Government department and

respondent No.3 is not a Government department. For this reason

also, the transfer was invalid. It has been next contended that by virtue of

Civil Court decree dated 08.10.1994, the predecessors-in-interest of the

petitioners were declared tenants at will. The status has been upheld by a

Division Bench of this Court vide judgment dated 05.12.1997 passed in

LPA-248-1994 and other connected cases. That being so, the tenancy

could not have been determined by issuing a notice under Section 106 of

the TP Act. The land is agricultural in nature and a tenant at will can only

be evicted in accordance with the procedure prescribed under the Punjab

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Security of Land Tenures Act, 1953 (hereinafter referred to as the Punjab

Act). Proceedings under the Act were without jurisdiction as the said Act

is not applicable to agricultural leases. Moreover, the TP Act is not

applicable in Haryana and on this ground also, the notice under Section

106 of the TP Act was no notice in the eyes of law. Reliance has been

placed upon Shyam Lal Vs. Deepa Dass Chela Ram Chela Garib Dass,

2016 (7) SCC 572 as well as The National Textile Corporation

Limited Vs. Nareshkumar Badrikumar Jagad and others, 2012 AIR

(SC) 264.

Learned counsel representing respondent No.3 has argued

that the lease stood terminated by issuance of notice under Section 106 of

the TP Act. Thereafter, the possession of the tenant became unauthorized.

Premises belonging to a University is covered by the definition of 'public

premises' as mentioned in the Act and thus, the argument that the eviction

petition was not maintainable, is baseless. Regarding the argument of

illegality of transfer in favour of University, it has been submitted that no

such objection was taken when CWP-9534-2008 filed by the University

was allowed. In fact, the writ petition was allowed because the petitioners

consented to the passing of the order and no objection was taken

regarding the title of the University. Thus, the petitioners are estopped

from raising this issue in the present writ petition. The direction given by

the Division Bench in judgment dated 05.12.1997 passed in

LPA-248-1994 and other connected cases, has been fully complied with

and the impugned orders do not suffer from any infirmity. Thus, the writ

petition deserves to be dismissed.

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First and foremost, the issue regarding transfer in favour of

respondent No.3 is being taken up for consideration. A perusal of order

dated 24.12.2010 (Annexure P-9) passed in CWP-9534-2008 shows that

learned counsel representing the tenants in the said case had consented to

the matter being remitted to the Collector, Sirsa for a fresh decision, in

accordance with law. No objection, whatsoever, was raised regarding the

title of the University. That was the first opportunity available to the

petitioners to raise an objection regarding title as earlier the proceedings

were being conducted in the name of HAU despite transfer in favour of

the University on 16.04.2004 HAU was made a party-respondent in the

appeal filed by the tenants as is evident from order dated 27.07.2006

(Annexure P-8) passed by the Commissioner, Rohtak Division. A legal

right can always be waived and no objection having been raised by the

petitioners at the time of decision of CWP-9534-2008, waiver can be

inferred by conduct. Thus, the petitioners are estopped from raising such

an objection in this writ petition or even, in the grounds of appeal filed

before the Commissioner, Hisar Division.

The next argument being taken up for consideration is

regarding the applicability of the TP Act in the State of Haryana. Section

117 of the said Act exempts leases for agricultural purpose from the

provisions of the Chapter i.e. Chapter-V, except insofar as the State

Government may by notification declare. The State of Punjab of which

Haryana formed a part at the relevant time issued a Notification dated

26.03.1955 published in the Punjab Government Gazette dated

01.04.1955 that provisions of Sections 54, 107 and 123 of the TP Act had

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been extended to the entire State w.e.f. 01.04.1955. It is thus, apparent

that Section 106 of the Act was not made applicable and notice issued

thereunder was no notice in the eyes of law. Resultantly, it can be safely

held that notice dated 27.09.2001 did not result in termination of the

status of tenant at will of the petitioners. That being so, the land in

dispute did not vest in the University and could not be said to be covered

by definition of 'public premises' within the meaning of the Act. Section

3 (b) of the Act provides that a person would be deemed to be in

unauthorized occupation of a premises when the allotment, lease or grant

in his favour had been determined or cancelled. Rights under the lease

having not been determined, the proceedings under the Act have to be

held to be without jurisdiction.

No further argument needs to be taken into consideration for

decision of the writ petition, however, since parties have argued at length

on the proper mode of termination of the tenancy of the petitioners and

for their eviction from the land in dispute, I deem it appropriate to deal

with the same.

The petitioners have been held to be tenants at will. In

Haryana, tenancy of agricultural land is governed by provisions of the

Punjab Act as well as the Punjab Tenancy Act, 1887 (hereafter referred to

as the Tenancy Act). The Punjab Act only refers to continuing tenancy

and does not envisage ejectment of persons whose tenancy has been

terminated. Section 41 of the Tenancy Act provides for ejectment of

tenant from year to year. The petitioners are such tenants as the lease in

their favour was for one year only. It was renewed from time to time and

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the last such renewal on record is of Rabi-1989 as pleaded by the HAU in

the written statement filed in the civil suit. In terms of Section 41 of the

Tenancy Act, such a tenant may be ejected at the end of any agricultural

year. Section 4 (17) and Section 41 of the Tenancy Act being relevant are

reproduced below:-

'Section 4 (17):- 'agricultural year' means the year commencing on the sixteenth day of June or on such other date as the State Government may by notification appoint for any local area.' 'Section 41:- Ejectment of tenant from year to year A tenant who has not a right of occupancy and does not hold for a fixed term under a contract or a decree or order of competent authority, may be ejected at the end of any agricultural year.'

From the above definition, it is clear that a tenant from year

to year can be ejected after fifteenth day of June of any year. The

procedure for such ejectment of a tenant is provided in Sections 42 & 45

of the Tenancy Act, which are also reproduced below:-

'42. Restriction on ejectment:- A tenant shall not be ejected otherwise than in execution of a decree, except in the following cases, namely:-

(a) when a decree for an arrear of rent in respect of his tenancy has been passed against him and remains unsatisfied;

(b) when the tenant has not a right of occupancy and does not hold for a fixed term under a contract or a decree or order of competent authority.

45. Ejectment of tenant from year to year by notice- (1) On receiving the application of the landlord in any such case as is mentioned in clause (b) of section 42, the

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Revenue Officer shall, if the application is in order and not open to objection on the face of it, cause a notice of ejectment to be served on the tenant.

(2) A notice under sub-section (1) shall not be served after the fifteenth day of November in any [agricultural] year.

(3) The notice shall specify the name of the landlord on whose application it is issued and describe the land to which it relates, and shall inform the tenant that he must vacate the land before the first day of May next following, or that if he intends to contest his liability to ejectment, he must institute a suit for that purpose in a Revenue Court within two months from the date of the service of the notice.

(4) The notice shall also inform the tenant that if he does not intend to contest his liability to be ejected and he has any claim for compensation on ejectment, he should within two months from the date of the service of the notice prefer his claim to the Revenue Officer having authority under the next following sub-section to order his ejectment in the circumstances described in that sub section.

(5) If within two months from the date of the service of the notice the tenant does not institute a suit to contest his liability to be ejected a Revenue Officer, on the application of the landlord shall, subject to the provisions of this Act with respect to the payment of compensation, order the ejectment of the tenant :

Provided that the Revenue Officer shall not make the order until he is satisfied that the notice was duly served on the tenant.

(6) If within those two months the tenant institutes a suit to contest his liability to be ejected and fails in the suit, the Court by which the suit is determined shall by its decree direct the ejectment of the tenant.'

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The above provisions clarify that notice of eviction

thereunder shall not be served after the fifteenth day of November and

that it shall inform the tenant that he must vacate the land before first day

of May next following. He must also be notified that in case, he contests

his liability to ejectment, he must file a suit for this purpose within the

two months from the date of notice and if, he does not contest the liability

to be ejected within two months, he can claim compensation for ejectment

within the said period. If, the tenant neither files a suit to contest his

liability to be ejected nor seeks compensation, a Revenue Officer can

eject him, thereafter. The matter of ejectment from agricultural land was

extensively examined by the Supreme Court in Shyam Lal (supra). In

that case, a suit for permanent injunction had been filed by the plaintiff-

tenant restraining the defendant-landlord from dis-possessing him except

in due course of law. The tenancy was created in his favour by Ram Dass

Chela Garib Dass who subsequently sold the land to the defendant. In the

suit, the defendant-landlord filed a counter claim seeking possession and

payment of mesne profit for unauthorized occupation on the ground of the

lease having come to an end by efflux of time, the lease being for a fix

period, the last of which was from 29.05.1996 to 28.05.2005. The trial

Court dismissed the suit and allowed the counter claim. In the first appeal

filed by the plaintiff, the defendant filed cross objections seeking higher

mesne profit. Both the appeal and cross-objections were dismissed by the

First Appellate Court. Thereafter, the plaintiff filed a Regular Second

Appeal which was allowed vide judgment dated 28.06.2010 reported in

2010 (4) RCR (Civil) 508. It was held that the lease period having come

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to an end by efflux of time, Section 9 of the Punjab Act could not be

invoked as it governed a subsisting tenancy. Accordingly, a civil suit

seeking possession was maintainable. It was also held that on account of

Section 117 of the TP Act, the said Act would not be applicable and the

lease deed in favour of the plaintiff-tenant was admissible in evidence to

examine, whether, the period of lease had come to an end. Accordingly,

the Regular Second Appeal was dismissed. Aggrieved, the plaintiff

preferred a Special Leave Petition which was decided vide judgment

dated 27.02.2015 reported in 2015 (2) RCR (Civil) 198. A Bench of two

Judges found itself in disagreement with another two Judges' Bench

judgment in SLP (Civil) No.18654 of 2008 titled as Sukhdev Singh (D)

Thr. LRs. and others Vs. Puran and others, which held that the

provisions of the Punjab Act would have no applicability after the expiry

of fixed term tenancy. Thus, the case was referred to a Larger Bench and

the Larger Bench decision has been rendered in Shyam Lal (supra). It

has been held that Section 107 of the TP Act applied in view of the

Notification dated 26.03.1995 issued by the Punjab Government and a

lease can only be created through a registered document. An unregistered

document is not admissible in evidence. Thus, the lease was deemed to

be a lease from year to year and that the tenant remained in possession

with the implied consent of the landlord. However, the consent ceased to

exist upon filing of cross-objections in the injunction suit and

accordingly, he acquired the status of a tenant at will. Such a tenant is

entitled to protection under the Punjab Act.

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The distinguishing feature between this case and Shyam Lal

(supra) is that the petitioners have themselves placed on record lease

deed dated 29.06.1977 which is for a period of one year commencing

Kharif-1977. The HAU has also pleaded an yearly lease in the written

statement filed in the civil suit. Thus, it would be safe to conclude that

the lease in favour of the petitioners and their predecessors-in-interest

were executed on an yearly basis. The finding of the Civil Court has to be

interpreted accordingly. There was never any fixed term lease in favour

of the petitioners and thus, inference of yearly lease need not be drawn as

has been done in Shyam Lal (supra). A tenant from year to year can be

ejected in accordance with the procedure prescribed in Sections 41 to 45

of the Tenancy Act as has been discussed in the foregoing paragraphs.

With the aforementioned observations, the writ petitions are

allowed and impugned orders of eviction are set aside.

A photocopy of this order be placed on the files of the other

connected cases.

                                                                (SUDHIR MITTAL)
                                                                     JUDGE
21.09.2022
Ramandeep Singh


Whether speaking / reasoned                                        Yes

Whether Reportable                                                  Yes




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