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Saturday, February 28, 2015

whether the alleged Dying Declaration attracts authenticity. Since the prosecution has succeeded in showing/proving by preponderance of probability that a dowry death has occurred, the burden of proving innocence has shifted to the accused. It appears to us to be unexceptionable that whenever a person is brought to a hospital in an injured state which indicates foul-play, the hospital authorities are enjoined to treat it as a medico-legal case and inform the police. If the doctor, who has attended the injured, is of the opinion that death is likely to ensue, it is essential for him to immediately report the case to the police; any delay in doing so will almost never be brooked. The police in turn should be alive to the need to record a declaration/statement of the injured person, by pursuing a procedure which would make the recording of it beyond the pale of doubt. This is why an investigating officer (I.O.) is expected to alert the jurisdictional Magistrate of the occurrence, who in turn should immediately examine the injured. When this procedure is adopted, conditional on the certification of a doctor that the injured is in a fit state to make a statement, a Dying Declaration assumes incontrovertible evidentiary value. We cannot conceive of a more important duty cast on the Magistrate, since the life & death of a human being is of paramount importance. We think that only if it is impossible for the Magistrate to personally perform this duty, should he depute another senior official. Non-adherence to this procedure would needlessly and avoidably cast a shadow on the recording of a Dying Declaration. The prosecution, therefore, would be expected to prove that every step was diligently complied with. The prosecution would have to produce the doctor or the medical authority to establish that on the examination of the injured/deceased, the police had been immediately informed. The I.O. who was so informed would then have to testify that he alerted the Magistrate, on whose non- availability, some responsible person was deputed for the purpose of recording the Dying Declaration. We are not in any manner of doubt that where medical opinion is to the effect that a person is facing death as a consequence of unnatural events, the responsibility of the Magistrate to record the statement far outweighs any other responsibility. There may be instances where there was no time to follow this procedure, but that does not seem to be what has transpired in the case in hand. In cases where some other person is stated to be recipient of a Dying Declaration, doubts may reasonably arise. 10 Since the burden of proving innocence beyond reasonable doubt shifts to the Accused in the case of a dowry death, as it has in the present case, it was imperative for the defence to prove the sequence of events which lead to the recording of the alleged Dying Declaration by the Tehsildar DW1. This burden has not even been faintly addressed. It appears that at the time of seeking bail the accused had requested the Sessions Court to call for the alleged Dying Declaration. Keeping in perspective that none of the Accused was present when the deceased was receiving medical treatment in the hospital, or when the Dying Declaration was allegedly recorded, or at the time of death, or even at the time of cremation, the manner in which the Accused learnt of the existence of the Dying Declaration has not been disclosed. The statement of the I.O. also does not clarify the position; he has stated that he learnt of the existence of the Dying Declaration from the relatives of the deceased. On the application of Sher Singh, the burden and necessity of proving this sequence of events stood transferred to the shoulders of the Accused since Section 304B of the IPC had been attracted. The I.O. has deposed that all the Accused, including the late father-in-law, Gorakh Nath, had absconded after the incident. In fact, in the cross-examination, the I.O. states that - "there is no reliable information about the Dying Declaration... On keeping this information that the Dying Declaration of Vijay Lakshmi was recorded by the Magistrate I did not consider any need of this thing". Neither the Doctor DW2 who had allegedly certified that the deceased was in a fit condition to make a statement nor the Tehsildar who had allegedly written down the alleged Dying Declaration has stated the manner in which the Tehsildar had been conscripted or located to perform this important recording. The Dying Declaration appears to have mysteriously popped up and referred to at the time of praying for bail. The chain or sequence of events which lead to its recording remains undisclosed. In his statement, the Tehsildar has not clarified the manner in which he happened to record the Dying Declaration and the timing of its transmission to the Court. Since the onus of proof had shifted to the Accused, this alleged sequence of events should have been proved beyond reasonable doubt by them. We may emphasise that the Tehsildar as well as the Doctor who allegedly certified that the deceased was in a fit state to make the Dying Declaration has been produced by the defence. The Doctor should have spoken of the sequence of events in which the Tehsildar came to record the Dying Declaration. The alleged exculpating Dying Declaration is, therefore, shrouded in suspicion and we have not been persuaded to accept that it is a genuine document. The defence has failed to comply with Section 113B of the Evidence Act. The Accused being charged of the commission of a dowry death ought to have entered the witness box themselves. The Accused were present on the scene at the time of the occurrence, which turned out to be fatal, and that added to their responsibility to give a credible version of their innocence in the dowry death.



                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS.1279-1281 OF 2011



RAMAKANT MISHRA @ LALU ETC.                  APPELLANTS

                                     VS.

STATE OF U.P.                                            RESPONDENT



                               J U D G M E N T



VIKRAMAJIT SEN, J.


1     These Appeals assail the Judgment  dated  13.07.2010  of  the  learned
Single Judge, High Court  of  Judicature  at  Allahabad,  Lucknow,  who  had
affirmed the conviction of the Appellants and the sentencing under  Sections
498A and 304B of the IPC pronounced by  the  VIIIth  Additional  District  &
Sessions Judge, Faizabad on 15.4.1999.  The essay, therefore, is to  reverse
the concurrent findings and sentence of the Courts below.

2     The endeavour of the learned counsel  for  the  Appellants  is  almost
entirely predicated on an exculpatory Dying Declaration  allegedly  made  by
the deceased, who was the wife of the 1st Appellant  and  the  sister-in-law
of the 2nd Appellant and the 3rd Appellant.    The  deceased  Vijay  Lakshmi
was married to the 1st Appellant, Ramakant Mishra, in  1989  and  from  that
wedlock a son named Sonu was begotten.    Sonu  has  been  living  with  his
maternal grandparents who have cared for all his requirements,  without  any
efforts on the part of the  Accused  towards  taking  over  his  custody  or
making any contribution for his expenses.  The prosecution has  shown/proved
that due to non-fulfillment of demands of dowry the deceased  was  harassed,
tortured and treated with cruelty.   The exact date of the marriage  is  not
forthcoming, but it avowedly took place much  before  the  expiry  of  seven
years of  the  unnatural  death  of  Vijay  Lakshmi.    On  the  morning  of
21.9.1994 she has been shown by the prosecution to have  been  put  on  fire
after sprinkling kerosene oil on her body.   The husband/Appellant No.1  and
the  other  Accused  appear  to  have  admitted  her  in  a  hospital   and,
thereafter, disappeared from the  scene,  not  even  being  bothered  to  be
present at her cremation.  She succumbed to 90-95 per cent burn injuries  at
11.30 p.m. that very day.    Jagdamba, Appellant No.2 and brother-in-law  of
the deceased, has stated that when the deceased was preparing  milk  on  the
chulah, Sonu toppled the container of kerosene oil and its contents  spilled
on the floor; in her endeavour to pick up her son Sonu, her saree  allegedly
got caught in the chulah, resulting in  the  saree  catching  fire  and  her
receiving 90-95 per cent burns.   In the Impugned Order it  has  been  noted
that the opinion of the Doctor was that death resulted from  burn  injuries.
The Chargesheet was submitted against four Accused named in the FIR, one  of
whom (the father-in-law of the deceased) has died.

3     Very recently, this Court had the opportunity of interpreting  Section
304B of the IPC in Criminal Appeal No.1592 of 2011,  titled  Sher  Singh  v.
State of Haryana, [reported in (2015) 1 SCR 29] which was  authored  by  one
of us (Vikramajit Sen,J.). Succinctly stated, it had been held therein  that
the use of word 'shown' instead of 'proved' in Section 304B  indicates  that
the onus cast on the prosecution would stand satisfied on  the  anvil  of  a
mere preponderance of probability.  In other words, 'shown' will have to  be
read up to mean  'proved'  but  only  to  the  extent  of  preponderance  of
probability.   Thereafter, the word 'deemed' used in that Section is  to  be
read down  to  require  an  accused  to  prove  his  innocence,  but  beyond
reasonable doubt.  The 'deemed' culpability of the accused leaving  no  room
for the accused to prove innocence was, accordingly, read down to  a  strong
'presumption' of his culpability.   However,  the  accused  is  required  to
dislodge this presumption by proving his innocence beyond  reasonable  doubt
as distinct from preponderance of possibility.

4     In harmony with the ratio of Sher Singh, so far as  the  present  case
is concerned, there can be no cavil that the prosecution  has  'shown'  that
Section 304B stands attracted since the death of the  wife  occurred  within
seven years of the solemnization of the marriage;  indubitably,  it  was  an
unnatural death.  It has also come in evidence that  immediately  after  her
marriage a demand for a scooter was  made  and  this  demand  recurred  with
regularity.   It is in  evidence  that  about  fifteen  days  prior  to  the
unnatural death of the hapless young wife, her  Grandfather  PW1  first  did
not accede to the request of the Accused to send the deceased/victim to  her
 matrimonial house because of their harassment and cruelty towards  her  for
not meeting their demands of dowry.   Only  when  the  Accused  assured  her
Grandfather that she would not be ill-treated, that she  was  sent  back  to
her matrimonial house. The statement of the Mother PW2 is also to  the  same
effect.   We are not persuaded, therefore, to hold that there  was  no  live
link between the dowry demand  and  the  death  or  that  the  Accused  have
succeeded in proving that  the  demand,  if  any,  was  of  a  much  earlier
vintage, on which count no support can  be  rallied  from  the  judgment  in
Tarsem Singh  v.  State  of  Punjab  (2008)  16  SCC  155.   Therefore,  the
requirement of Section 304B of the IPC that the dowry demand should be  made
soon before the death stands satisfied. Accordingly, it appears to  us  that
the prosecution has succeeded in  showing,  or  proving  prima  facie,  that
dowry demands had been made by the Accused even shortly before the death  of
the deceased.

5     The defence has rested very  heavily  nay,  almost  entirely,  on  the
alleged Dying Declaration attributed to the deceased. The  admissibility  of
a Dying Declaration as a piece  of  evidence  in  a  Trial  is  governed  by
Section 32(1) of the Evidence Act, 1872. Section 32, as a whole,  enunciates
the exceptions to  the  rule  of  non-admissibility  of  hearsay  evidences,
eventuated out of necessity to give relevance to the statements  made  by  a
person whose attendance cannot be procured for  reasons  stipulated  in  the
section. Postulating the essential ingredients to define what exactly  would
constitute a hearsay is an arduous task, and since  we  are  only  concerned
with one of its exceptions, we  should  forbear  entering  into  the  entire
arena. The risks while admitting a  Dying  Declaration  and  the  statements
falling within the domain of Section 32(1) run higher in contrast  to  other
sundry evidences, and this entails a huge  bearing  on  their  admissibility
and credibility. Such statements are neither made on oath nor the  maker  of
the statement would be available for cross-examination  nor  are  they  made
under the influence of the supremacy and the solemnity  of  the  court-room.
This is the reason why this Court has consistently underlined the  necessity
to examine this specie of  evidence  with  great  circumspection  and  care.
However, once a Dying Declaration is held to be  authentic,  inspiring  full
confidence beyond the pale of doubt,  voluntary,  consistent  and  credible,
barren of tutoring, significant sanctity is  endowed  to  it;  such  is  the
sanctitude that it can even be the exclusive  and  the  solitary  basis  for
conviction without seeking any  corroboration.   At  this  juncture,  it  is
worthwhile noting that the sanctity attached to a Dying Declaration  springs
up from the rationale that a person genuinely under the  sense  of  imminent
death would speak only the truth.  In addition  to  the  Dying  Declaration,
which is only one of the species of the genus of Section 32(1), there  could
be other statements, written or verbal,  which  also  would  be  encompassed
within the sweep of this section, and at this point the  Indian  law  drifts
from the English law. This is further evident from the usage of  phraseology
in the section, embracing not only statements made about  "cause  of  death"
but also about "any of the circumstances of the transaction  which  resulted
in the death", whether or not the person  making  the  statement  was  under
"expectation of death". These statements could be in the form of  a  suicide
note, a letter, a sign or a signal, or a product of any  reliable  means  of
communication; their  genuineness  and  credibility  shall,  of  course,  be
reckoned  by  the  Court  entertaining  the  concerned   matter.   A   Dying
Declaration enjoys a higher level of credence vis--vis any other  statement
abovementioned, which is  on  account  of  the  former  being  made  in  the
"contemplation of death". "Contemplation of death" is the primal  factor  to
segregate Dying Declarations from other statements.   But  no  hard-and-fast
rule can be laid down to confine the contemplation within the  circumference
of few hours or a few days in which death of  the  maker  of  the  statement
must happen so as to  elevate  that  statement  to  the  level  of  a  Dying
Declaration. Moreover, the  state  of  mind  of  the  maker  would  also  be
material in discerning completely as to whether the maker was  mentally  fit
to  make  the  statement  and  whether  the  maker   actually   could   have
contemplated death.

6      Definition of this legal concept  found  in  Black's  Law  Dictionary
(5th Edition) justifies reproduction:  Dying Declarations - Statements  made
by a person who is lying at the point of death,  and  is  conscious  of  his
approaching death, in reference to the  manner  in  which  he  received  the
injuries of which he is dying, or other immediate cause of  his  death,  and
in reference to the person who inflicted such  injuries  or  the  connection
with such injuries of a  person  who  is  charged  or  suspected  of  having
committed them; which statements are admissible in evidence in a  trial  for
homicide (and occasionally, at least in some jurisdictions, in other  cases)
where the killing of the declarant is the crime charged  to  the  defendant.
Shepard v. U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196.    Generally,
the admissibility of such declarations is limited  to  use  in  prosecutions
for homicide; but is  admissible  on  behalf  of  accused  as  well  as  for
prosecution.  In a  prosecution  for  homicide  or  in  a  civil  action  or
proceeding, a statement made by a declarant while believing that  his  death
was imminent, concerning the cause or circumstances of what he  believed  to
be his impending death is not excluded by  the  hearsay  rule.   Fed.Evid.R.
804(b)(2).

7      When a person makes a statement while being  aware  of  the  prospect
that his death is  imminent  and  proximate,  such  a  statement  assumes  a
probative value which is almost unassailable, unlike other statements  which
he may have made earlier, when death was not lurking around, indicating  the
cause of his death.   That is to say that a person might  be  quite  willing
to implicate an innocent person but would not do so when death  is  knocking
at his door.  That is why a Dying Declaration, to  conform  to  this  unique
specie, should have been made when death was in  the  contemplation  of  the
person making the statement/declaration.

8      In the case before us, the statement, if made by the deceased,  would
qualify to be treated as a Dying Declaration because  she  was  admitted  in
the hospital, having sustained 90-95 per cent burn injuries, and because  of
this grave burn injuries, she would be  expecting  to  shortly  breathe  her
last.


9     The central question, however,  remains  as  to  whether  the  alleged
Dying  Declaration  attracts  authenticity.  Since   the   prosecution   has
succeeded in showing/proving by preponderance of probability  that  a  dowry
death has occurred, the burden of  proving  innocence  has  shifted  to  the
accused.   It appears to us to be unexceptionable that whenever a person  is
brought to a hospital in an injured state  which  indicates  foul-play,  the
hospital authorities are enjoined to treat it as  a  medico-legal  case  and
inform the police.    If the doctor, who has attended  the  injured,  is  of
the opinion that death is likely to  ensue,  it  is  essential  for  him  to
immediately report the case to the  police;  any  delay  in  doing  so  will
almost never be brooked.  The police in turn should be alive to the need  to
record  a  declaration/statement  of  the  injured  person,  by  pursuing  a
procedure which would make the recording of it beyond  the  pale  of  doubt.
This is why an  investigating  officer  (I.O.)  is  expected  to  alert  the
jurisdictional Magistrate of the occurrence, who in turn should  immediately
examine the injured.  When this procedure is  adopted,  conditional  on  the
certification of a doctor that the injured is in  a  fit  state  to  make  a
statement, a Dying Declaration assumes incontrovertible  evidentiary  value.
  We cannot conceive of a more important duty cast on the Magistrate,  since
the life & death of a human being is  of  paramount  importance.   We  think
that only if it is impossible for the Magistrate to personally perform  this
duty, should he depute  another  senior  official.   Non-adherence  to  this
procedure would needlessly and avoidably cast a shadow on the  recording  of
a Dying Declaration.   The prosecution,  therefore,  would  be  expected  to
prove that every step was diligently complied with.  The  prosecution  would
have to produce the doctor or the medical authority  to  establish  that  on
the examination of the injured/deceased, the  police  had  been  immediately
informed.  The I.O. who was so informed would then have to testify  that  he
alerted the Magistrate, on whose non- availability, some responsible  person
was deputed for the purpose of recording the Dying Declaration.  We are  not
in any manner of doubt that where medical opinion is to the  effect  that  a
person  is  facing  death  as  a  consequence  of  unnatural   events,   the
responsibility of the Magistrate to record the statement far  outweighs  any
other responsibility.  There may be instances where there  was  no  time  to
follow this procedure, but that does not seem to be what has  transpired  in
the case in hand.   In cases  where  some  other  person  is  stated  to  be
recipient of a Dying Declaration, doubts may reasonably arise.

10    Since the burden of proving innocence beyond reasonable  doubt  shifts
to the Accused in the case of a dowry death, as it has in the present  case,
it was imperative for the defence to prove  the  sequence  of  events  which
lead to the recording of the alleged  Dying  Declaration  by  the  Tehsildar
DW1.   This burden has not even been faintly addressed.    It  appears  that
at the time of seeking bail the accused had requested the Sessions Court  to
call for the alleged Dying Declaration.    Keeping in perspective that  none
of  the  Accused  was  present  when  the  deceased  was  receiving  medical
treatment in the hospital, or  when  the  Dying  Declaration  was  allegedly
recorded, or at the time of death, or even at the  time  of  cremation,  the
manner  in  which  the  Accused  learnt  of  the  existence  of  the   Dying
Declaration has not been disclosed.   The statement of the  I.O.  also  does
not clarify the position; he has stated that he learnt of the  existence  of
the  Dying  Declaration  from  the  relatives  of  the  deceased.    On  the
application of  Sher  Singh,  the  burden  and  necessity  of  proving  this
sequence of events stood transferred to the shoulders of the  Accused  since
Section 304B of the IPC had been attracted.  The I.O. has deposed  that  all
the Accused, including the late father-in-law, Gorakh  Nath,  had  absconded
after the incident.   In fact, in the  cross-examination,  the  I.O.  states
that - "there is no reliable information about the Dying Declaration...   On
keeping this information that the Dying Declaration  of  Vijay  Lakshmi  was
recorded by the Magistrate I did not  consider  any  need  of  this  thing".
Neither the Doctor DW2 who had allegedly certified that the deceased was  in
a fit condition to make a statement nor  the  Tehsildar  who  had  allegedly
written down the alleged Dying Declaration has stated the  manner  in  which
the Tehsildar had been conscripted or  located  to  perform  this  important
recording.  The Dying Declaration appears to  have  mysteriously  popped  up
and referred to at the time of praying for bail.   The chain or sequence  of
events which lead to its recording remains undisclosed.   In his  statement,
the Tehsildar has not clarified the manner in which he  happened  to  record
the Dying Declaration and the timing  of  its  transmission  to  the  Court.
Since the onus of proof had shifted to the Accused,  this  alleged  sequence
of events should have been proved beyond reasonable doubt by them.   We  may
emphasise that the Tehsildar as well as the Doctor who  allegedly  certified
that the deceased was in a fit state to make the Dying Declaration has  been
produced by the defence.   The Doctor should have spoken of the sequence  of
events in which the Tehsildar came to record the  Dying  Declaration.    The
alleged exculpating Dying Declaration is, therefore, shrouded  in  suspicion
and we have not been persuaded to accept that  it  is  a  genuine  document.
The defence has failed to comply with Section  113B  of  the  Evidence  Act.
The Accused being charged of the commission of a dowry death ought  to  have
entered the witness box themselves.  The Accused were present on  the  scene
at the time of the occurrence, which turned out to be fatal, and that  added
to their responsibility to give a credible version  of  their  innocence  in
the dowry death.

11    Paniben v. State of  Gujarat (1992) 2  SCC  474,   Mafabhai  Nagarbhai
Raval v. State of Gujarat (1992) 4 SCC 69, Vithal v.  State  of  Maharashtra
(2006) 13 SCC 54, Amarsingh Munnasingh Suryawanshi v. State  of  Maharashtra
(2007) 15 SCC 455, Sher Singh v. State of Punjab (2008) 4 SCC 265,  Samadhan
Dhudaka Koli v. State of Maharashtra (2008) 16 SCC 705  and  Surinder  Kumar
v. State of Punjab (2012) 12 SCC 120, are distinguishable on  facts  because
in the case in hand we are not convinced of the authenticity  of  the  Dying
Declaration; in contradiction to  its  form,  or  the  mental  stability  or
lucidity of the deceased at the time when she allegedly made  the  statement
attributed to her.

12    The Appeals are dismissed in the above terms.   The interim  Order  is
recalled.


....................................J.
(VIKRAMAJIT SEN)


....................................J.
(R.K. AGRAWAL)
New Delhi;
February 27, 2015.

Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, must proceed sequentially. First, the factum of an Award under Section 11 of the Land Acquisition Act, 1894, must be clearly established. The said Award must predate the commencement of the Act, i.e., 01.01.2014., by at least five years (or more), ie., the Award must have been passed on or before 01.01.2009. This having been established, if possession is found to not have been taken, or compensation not paid, then the proceedings shall be deemed to have lapsed. Thereafter, the appropriate Government, if it so chooses, may reinitiate acquisition proceedings in respect of the same land, but under the 2013 Act's regime. These Appeals assail one Judgment and an Order [passed in light of that Judgment] of a Division Bench of the Delhi High Court, which had allowed the Writ Petitions before it, and declared that the acquisitions had lapsed for the reason that the possession had not been taken and compensation, too, not paid. This is sufficient ground for granting the protection envisaged by Section 24(2) of the Land Acquisition Act, 2013.

 


                                                               REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.  2592     of 2015
                  [Arising out of SLP(C)No. 33569 of 2014]


GOVT.OF NCT OF DELHI AND ORS               ..      APPELLANT

                                   VERSUS

JAGJIT SINGH AND ORS                             .. RESPONDENTS

                                   W I T H

                     CIVIL APPEAL NO.  2586     of 2015
                  [Arising out of SLP(C) No. 2125 of 2015]

                                   W I T H

                     CIVIL APPEAL NO.  2587     of 2015
                  [Arising out of SLP(C) No. 2122 of 2015]

                                   W I T H

                     CIVIL APPEAL NO.  2588     of 2015
                   [Arising out of SLP(C) No. 390 of 2015]


GOVT.OF NCT OF DELHI & ORS.             ..APPELLANTS

                                   VERSUS

SUDHAR SAMITI RAJIV NAGAR EXT (REGD.)
AND ORS.                                           ..RESPONDENTS

                                    WITH

                     CIVIL APPEAL NO.  2589     of 2015
                   [Arising out of SLP(C) No. 384 of 2015]

                                    WITH

                       CIVIL APPEAL NO. 2590   of 2015
                   [Arising out of SLP(C) No. 393 of 2015]

                                    WITH

                      CIVIL APPEAL NO.  2591   of 2015
                   [Arising out of SLP(C) No. 383 of 2015]

                                    WITH

                      CIVIL APPEAL NO.  2593    of 2015
                  [Arising out of SLP(C) No. 2724 of 2015]



                               J U D G M E N T

VIKRAMAJIT SEN, J.

1        Any  determination  under  Section  24(2)  of  the  Right  to  Fair
Compensation  and  Transparency  in  Land  Acquisition  Rehabilitation   and
Resettlement Act, 2013, must proceed sequentially. First, the factum  of  an
Award under Section 11 of the Land Acquisition Act, 1894,  must  be  clearly
established.  The said Award must  predate  the  commencement  of  the  Act,
i.e., 01.01.2014., by at least five years (or more),  ie.,  the  Award  must
have been passed on or before 01.01.2009.  This having been established,  if
possession is found to not have been taken, or compensation not  paid,  then
the proceedings shall be deemed to have lapsed. Thereafter, the  appropriate
Government, if it so chooses,  may  reinitiate  acquisition  proceedings  in
respect of the same land, but under the 2013 Act's regime.



2      Each  and  every  deeming  operation  under  Section  24(2)  requires
unambiguously and unvaryingly that a factual conclusion be drawn  about  the
passing of the Award under Section  11,  of  the  1894  Act,  on  or  before
01.01.2009; further, the absence of compensation having  been  paid  or  the
absence of possession having been taken by the acquirer,  either  of  these,
must be a proven point of fact, as a threshold  requirement  attracting  the
lapse.



3     This Court has in a  number  of  decisions  including  Pune  Municipal
Corporation vs. Harakchand Misirimal Solanki  (2014)  3 SCC  183,  Union  of
India vs. Shiv Raj (2014) 6 SCC 564 and Bimla Devi  vs.  State  of   Haryana
(2014)  6  SCC  583,  clarified the manner in which the new provision is  to
be interpreted viz., that the acquisition lapses.


4     It has been contended in other Appeals  before  this  Court  that  the
Right  to  Fair  Compensation  and   Transparency   in   Land   Acquisition,
Rehabilitation and Settlement Ordinance,  2014,  issued  on  31st  December,
2014, clarifies that if possession of the acquired land has not  been  taken
owing to interim Orders  passed  in  this  regard  the  acquisition  may  be
protected and insulated from the purpose and intendment  of  Section  24  of
the 2013 Act.   This Court has now clarified in Radiance Fincap (P) Ltd.  v.
Union of India & Ors. [Civil Appeal No. 4283 of 2011 decided on  12.01.2015]
that the Ordinance  shall  have  prospective  operation  only.   This  Court
therein held as under:
"The right conferred to the land holders/owners of the acquired  land  under
Section 24(2) of the Act is the statutory right  and,  therefore,  the  said
right cannot be taken away by an  Ordinance  by  inserting  proviso  to  the
abovesaid sub-Section without giving retrospective effect to the same."

The legal position has been subsequently reiterated by this Court in  Arvind
Bansal v. State of Haryana (Civil Appeal  Nos.417-418  of  2015  decided  on
13.01.2015) and Karnail Kaur v. State of Punjab [Civil Appeal  No.  7424  of
2013 decided on 22.01.2015].  We are in respectful agreement with all  these
decisions.   In the event that there is no ambiguity that (a) the  Award  is
over five years old and (b) that compensation has not been paid or (c)  that
possession of the land has not been taken, the acquisition is liable  to  be
quashed.   In Rajiv Chowdhrie HUF v. Union of India  [Civil  Appeal  No.8786
of 2013, decided on 06.02.2015], noting that the physical possession of  the
land had not been taken by the Respondents, nor  compensation  paid  by  the
Respondents to the Appellant in respect whereof  the  Award  was  passed  on
6.08.2007, the acquisition proceedings had been declared as  having  lapsed.
 The same position was arrived at in Rajiv Chowdhrie HUF v. Union  of  India
in Civil Appeal No.8785 of 2013 decided on 10.12.2014 by a  different  Bench
of this Court.


5     These Appeals assail one Judgment and an Order  [passed  in  light  of
that Judgment] of a Division Bench  of  the  Delhi  High  Court,  which  had
allowed the Writ Petitions before it, and  declared  that  the  acquisitions
had lapsed for the reason  that  the  possession  had  not  been  taken  and
compensation, too, not paid.   This is sufficient ground  for  granting  the
protection envisaged by Section 24(2) of the Land Acquisition Act, 2013.



6     The Appeals are dismissed in the above terms.






.......................................J.
[VIKRAMAJIT SEN]



....................................................J
[SHIVA KIRTI SINGH]
New Delhi,
February 27, 2015.

Friday, February 27, 2015

"In our view, the aforesaid argument of the learned counsel does not merit acceptance. Admittedly, the petitioners were granted lease of the suit land in 1955 for a period of 20 years and the term of their lease ended in 1975. Section 9 of the 1953 Act is attracted only when a tenant is sought to be evicted. The said section is not applicable to a case where the tenancy gets terminated by efflux of time and the person occupying the lease premises no longer remains tenant. There is no provision in the 1953 Act similar to those contained in the Urban Rent Control Legislations under which a tenant becomes statutory tenant after expiry of the contractual tenure of the tenancy." Be that as it may, in Sukhdev Singh's case (supra) a Bench of this Court on consideration of the provisions of Punjab Security of Land Tenures Act, 1953 was of the opinion that after the expiry of fixed term tenancy in respect of agricultural land, the tenancy gets terminated by efflux of time and person occupying the lease premises no longer remains tenant. With due respect, we are not in agreement with the view taken by this Court in Sukhdev Singh's case (supra).


                                                        REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 4245 OF 2012

Shyam Lal                                           .....Appellant

                                   versus

Deepa Dass Chela Ram Chela Garib Dass   .....Respondent



                                  JUDGMENT



M. Y. EQBAL, J.



      This appeal by special leave is directed against  the  judgment  dated
28.6.2010 of the High Court of Punjab and Haryana whereby the second  appeal
filed by the appellant-plaintiff was dismissed with costs throughout.



2.    The litigation between the parties commenced  on  the  filing  of  the
suit  by  the  plaintiff-appellant  for  permanent  injunction  against  the
respondent-defendant claiming  to  have  been  in  possession  of  the  suit
property for 27-28 years as Gair Marusi and  alleging  that  the  respondent
was threatening to dispossess him.  The plaintiff claimed himself to  be  in
possession  over  the  agricultural  land  measuring  122  kanals  2  marlas
situated in village Chhainsa, Tehsil Ballabhgarh, District Faridabad  having
tube-well, electricity connection and his house in Killa No.26 in  which  he
is allegedly residing for the last 27-28 years continuously and also  having
another Engine Tubewell Bore in killa no.26(1-2).  It is  the  case  of  the
plaintiff that earlier Ram Dass  Chela  Garib  Das  was  the  owner  of  the
aforesaid land, which is now recorded in the  ownership  of  the  defendant-
respondent vide Rapat No.508 dated 8.8.2003.



3.    The case of the  respondent  on  the  other  hand  is  that  the  suit
property was leased to the appellant-plaintiff by  its  original  owner  Ram
Dass Chela with effect from 12.7.1986 to June,  1994  and  then  again  from
29.5.1996  till  28.5.2005  for  a  consideration  of   Rs.1,60,000/-.   The
respondent had purchased the suit  property  on  8.8.2000.  The  respondent-
defendant pleaded that after expiry of  the  lease  on  28.5.2005  the  suit
property was to revert back to the defendant, but  the  plaintiff  illegally
and unlawfully wanted to grab the suit land and as such the respondent  also
filed a counter-claim in the  said  suit  seeking  a  decree  for  mandatory
injunction directing the plaintiff to handover  vacant  peaceful  possession
of the land to the defendant with damages at the  rate  of  Rs.17,800/-  per
annum for  unauthorized  occupation  of  the  suit  land.   Contesting  this
counter claim, plaintiff replied that after the expiry of  lease,  plaintiff
has become statutory tenant and his tenancy is protected by  the  provisions
of the Punjab Security of Land Tenure Act, 1953 (hereinafter referred to  as
the "1953 Act").  It was also pleaded that the plaintiff is  liable  to  pay
fixed rent of Rs.3000/- per annum and not the amount which has been  claimed
by the defendant as damages.



4.    The trial court, after considering  the  pleadings  and  evidence  led
before it, dismissed the suit of the  appellant  but  allowed  the  counter-
claim holding that the plaintiff was not a Gair marusi  but  a  tenant  over
the suit  property  whose  tenancy  had  expired  on  28.5.2005  and  was  a
trespasser thereafter.  Aggrieved by the judgment of the  trial  court,  the
plaintiff-appellant preferred an appeal which was dismissed by the  District
Court upholding the findings of the trial  court.   The  plaintiff-appellant
then moved the High Court by way of second appeal contending that he  was  a
tenant under section 4(5) of the Punjab Tenancy Act, 1887 and  Section  2(6)
of the Punjab Security of Land Tenures Act, 1953, and  therefore,  could  be
evicted only on the grounds mentioned in Section 17 of the 1953  Act.    The
appellant also contended that the lease deed produced by the respondent  was
not admissible in evidence as it was not registered.



5.    Dismissing the appeal of the  plaintiff  with  costs,  learned  Single
Judge of the High Court held that the appellant would not be a tenant  after
the expiry of the lease and would also not be entitled to  protection  under
Section 9 of the 1953 Act as the respondent landlord had made his  intention
of not extending the lease by filing a counter-claim against the  petitioner
seeking possession. Section 9 of the 1953 Act  protects  subsistent  tenancy
and not a trespasser in possession after the expiry of the lease.    Learned
Single Judge further held that though an unregistered  lease  deed  was  not
admissible in evidence, however as the  lease  deed  herein  was  meant  for
agricultural purposes, it was exempt from registration under Section 117  of
the Transfer of Property Act.  Hence, the present appeal  by  special  leave
by the plaintiff under Article 136 of the Constitution.



6.    We have heard Mr. Parveen H. Parekh, learned senior counsel  appearing
for appellant and Mr. Manoj Swarup,  learned  counsel  for  the  respondent.
We have also perused the impugned judgment and all the papers placed  before
us.  The question that  arises  for  consideration  is  as  to  whether  the
plaintiff-appellant became a trespasser after expiry of the lease period  or
continued to be a tenant having protection for eviction  under  the  tenancy
laws.

7.    Mr. P.H. Parekh, learned senior counsel appearing for  the  appellant,
referred relevant provisions of the Punjab Security  of  Land  Tenures  Act,
1953 and submitted that a tenant in possession of agricultural  land  cannot
be held to be a trespasser only because of expiry of the  period  for  which
he was put in possession as a  tenant.   According  to  the  learned  senior
counsel, even after the expiry of the lease or contract,  he  will  continue
as the statutory tenant and not as the trespasser.  Learned  senior  counsel
put reliance on the decision of the Supreme Court in the case of Bhajan  Lal
vs. State of Punjab & ors., (1971) 1  SCC  34,   V.  Dhanapal  Chettiar  vs.
Yesodai Ammal, (1979) 4 SCC 214, and on the Punjab and Haryana High  Court's
decision in Ram Lal vs. Darshan Lal & ors., (2008) 3 RCR (Civil) 427.


8.    Mr. Manoj Swarup, learned counsel for the respondent,  in  support  of
his contention said that after the expiry  of  lease  the  lessee  became  a
trespasser, relied upon decisions of this Court in R.V.  Bhupal  Prasad  vs.
State of A.P. & Ors., (1995) 5 SCC 698, and the decisions of the Punjab  and
Haryana High Court in the cases of Mandir Jhoke Hari Har  &  ors.  vs.  Ajit
Kaur & ors., 1977 PLJ 315 and Rameshwar vs. Sheo  Chand  &  ors.,  1981  PLJ
362.


9.     To decide rival claims of the parties, we  think  it  appropriate  to
reproduce here relevant provisions of the law.



10.   In order to provide for the security of  land  tenure  and  incidental
matters, the  Punjab  Security  of  Land  Tenures  Act,  1953  was  enacted.
However, such provisions of land security Act which  are  inconsistent  with
the newly enacted provisions of the Haryana Ceiling  of  Land  Holding  Act,
1972 has been repealed.  The provisions of 1953 Act still  holds  the  field
in many matters with regard to eviction and protection  of  tenants  in  the
manner not provided in the Act.   Section 2(6) of the Act defines  the  word
'Tenant' as under:-

"Tenant" has the meaning assigned to it in  the  Punjab  Tenancy  Act,  1887
(Act XVI of 1998), and includes a sub-tenant, and  self-cultivating  lessee,
but shall not include a present holder, as  defined  in  section  2  of  the
resettlement Act."



11.   Section 4(5) of the Punjab Tenancy Act, 1887 (in  short,  "1887  Act")
defines the word 'tenant' as under:-

"4. Definitions- In this Act, unless there in  something  repugnant  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 of unoccupied  land  for
the purpose of subletting it."







12.   Section 2(8) of the 1887 Act defines the word "tenancy"  as  a  parcel
of land held by a tenant of a  landlord  under  one  lease  or  one  set  of
conditions.  Section 40 of the said Act provides  the  grounds  under  which
the tenant, who is in occupation for a fixed term, can be ejected.   Section
40 reads as under:

"40. Grounds of ejectment of tenant for a fixed term-

A tenant not having a right of occupancy but holding for a fixed term  under
a contract or a decree or order of competent authority, shall be  liable  to
be ejected from his tenancy at the expiration of that term, and, on  any  of
the following grounds, before the expiration thereof namely :--

(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 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) on any ground which would justify ejectment under  the  contract  decree
or order."



13.   Reading the definition of tenant in both the Acts together would  show
that a tenant includes a self cultivating tenant and is liable to pay  rent.
 Section 42 of the 1887 Act prescribes the procedure  for  ejectment,  which
is quoted hereinbelow:

"42. Restriction of Ejectment-A tenant shall not be ejected  otherwise  that
in execution of a decree for  ejectment,  except  in  the  following  cases,
namely:-

(a) when a decree for an arrear of rent in respect of  his  tenancy  hasbeen
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."





14.   Coming back to 1953 Act, which provides the  circumstances  where  the
tenancy shall continue.  Section 8 reads as under:-

"8.  Continuity of tenancies -

The continuity of tenancy shall not be affected by-

      (a)   the death of the landlord, or

      (b)   the death of tenant , except when  the  tenant  leaves  no  male
lineal descendants or mother or widow, and

      (c)   any change therein  under  the  same  land-owner,  and  for  the
purposes of sections 17 and 18 of this Act, such tenancy shall be  the  last
area so held."





15.   Section 9 of the 1953 Act provides the liability of the tenant  to  be
ejected from the land held by him. Section 9 reads as under:-

"9.   Liability of the tenant to be ejected.-

(1) Notwithstanding anything contained in any other law for 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 of rent 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  customary  in  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) refuses to execute a Qabuliyat or a Patta, in the form 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 of this Act, only if  the  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 if  the  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 if the tenant holds land of several  land-owners
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  land-owners  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."







16.   Section 10 makes provision for restoration  of  tenant  ejected  after
15th August, 1947.  The said provisions are as under:-

"10. Restoration of tenant ejected after the 15th of August, 1947-

Where a tenant has been ejected from any land in excess of  the  permissible
area on grounds  other  than  those  mentioned  in  section  9,  before  the
commencement of this Act, and after the 15th August, 1947, and such land  is
under self-cultivation, such tenant shall, [subject  to  the  provisions  of
this Act be entitled to be restored to his tenancy in the manner  prescribed
on the same terms and conditions on which it was held by him at the time  of
his ejectment, on an application made  to  an  Assistant  Collector  of  the
first  Grade  having  jurisdiction,  within  one  year  from  the  date   of
intimation of reservation after the commencement of  this  Act,  or,  if  no
such reservation is made within the period specified  in  sub-section(3)  of
section 5, two years from the date of commencement of this Act;



Provided that if more tenants than one  have  been  ejected  from  the  same
tenancy, the right of application for restoration shall  be  exercisable  in
serial order of priority commencing from the tenant  first  ejected  and  to
the extent in each case of the permissible area, after taking  into  account
any other tenancy or land which the ejected tenant holds at the time of  his
application for restoration.



On receipt of an application the Assistant Collector shall, after giving  to
the parties notice in writing and a  reasonable  opportunity  to  be  heard,
determine the dispute summarily, and shall keep  a  memorandum  of  evidence
and a gist of his final order with brief reasons therefor.



When an application has been made, any proceedings in relation to  the  same
matter pending in any other court or before any  other  authority  shall  be
stayed on receipt of information  by  that  court  or  authority  from  such
assistant collector of the fact of having received the application, and  all
such proceedings in a court or before any authority  shall  lapse  when  the
dispute has been determined by the Assistant  Collector  acting  under  this
Act.



A land-owner or any other person in actual possession of land  at  the  time
of restoration shall be entitled to such compensation as may  be  determined
by the Assistant Collector, from the tenant intended to be restored for  any
loss suffered in consideration of anything done prior to  the  date  of  his
first receiving information of the application.



Provided that no  ejected  tenant  shall  be  restored  to  his  tenancy  as
provided hereinbefore unless he has paid compensation as determined  by  the
Assistant Collector to the land-owner or other person, if any  as  the  case
may be."







17.   Section 14-A provides for ejectment and recovery of  arrears  of  rent
which reads as under :-

"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.-


a land owner desiring to eject a  tenant  under  this  Act  shall  apply  in
writing  to the Assistant Collector First  Grade  having  jurisdiction,  who
shall  thereafter  proceed as  provided  for  in  sub-section  (2)  of  sub-
section 10 of this Act,  and  the  provisions  of  sub-section  (3)  of  the
said  section shall also 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 of rent  from  a  tenant
shall apply in writing  to the  Assistant  Collector  Second  Grade,  having
jurisdiction, 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 of having 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 10 of this  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, having jurisdiction 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 "



18.   Perusal of Section 18 of 1953 Act would  show  that  the  tenant  have
also been  given  right  to  purchase  the  land  if  he  is  in  continuous
possession of the land for a minimum period  of  six  years.   This  Section
even gives a right to a tenant, to purchase land, who was ejected  from  his
tenancy after  14th August, 1947 and who was  in  continuous  possession  of
the land for a period of six years.

19.   Considering the provisions of Sections 9, 14, 14A and 18 together,  we
have no doubt in our mind that a tenant of an agricultural  land  is  liable
to be evicted only in the manner provided under the Act notwithstanding  any
contract on the basis of which tenant occupied possession of  the  land  for
the purpose of cultivation.  We  are  also  of  the  view  that  action  for
eviction of a tenant can be taken before a Revenue Authority to  whom  power
and jurisdiction has been conferred by the said Act.

20.   The defendant-respondent's own case in the written statement  is  that
the appellant-tenant came in possession of the land in 1986 and remained  in
continuous possession till 2005.  Indisputably,  the  appellant's  name  was
recorded in Jamabandies, which is evident from  the  Exhibit  P-1  and  P-2.
Khasra Girdwari entries are also in the name of appellant.  The trial  court
without appreciating the evidence came to the following conclusion that  the
appellant became a trespasser.  The court held:-
"The jamabandies produced by both the parties are  self  contradictory.  The
jamabandies produced by the plaintiff name of the plaintiff is  entitled  in
the gair marusi record and chakota as the name is entered at Rs.3,000/-  per
annum and Ram Dass Chela Garib Dass has given the aforesaid  land  to  Shyam
lal on lease from 29.5.1956 to 28.5.2005 for Rs. 1,60,000/-.  Therefore,  it
proves that the possession of  the  plaintiff  over  the  suit  property  is
termed to be a trespasser and plaintiff has not having any right  to  remain
over the suit property as tenant.  It  is  also  pointed  out  that  if  the
plaintiff is a gair marusi tenant.  He has to  prove  on  file  the  payment
made by him to the land owner but there  is nothing on record to prove  this
fact that the plaintiff has paid any amount to the defendant/land owners."

21.   The Appellate Court, although  took  notice  of  the  entries  in  the
revenue record wherein plaintiff-appellant  was  recorded  as  Gair  Marusi,
held that those entries are without any basis  and  liable  to  be  ignored.
The learned Appellate Court further held that  after  the  expiry  of  lease
period in 2005 the appellant loses authorization to hold possession  of  the
land and his right to hold possession is not more than a trespasser.

22.   Similar provisions have been made in the  Orissa  Tenancy  Act,  1913.
Section 3(23) is the definition of tenant which means  a  person  who  holds
land under another person, and is, but for  a  special  contract  would  be,
liable to pay rent for that land to that person.

23.   Sub-section 2 of  Section  5  of  the  Orissa  Act  defines  the  term
"Raiyat", which means primarily a person who has acquired the right to  hold
land for the purpose of cultivating it  by  himself  or  by  person  of  his
family or by hired servants  and  also  includes  successors-in-interest  or
person who have acquired such right.  Further, where a tenant  of  land  has
the right to bring it under cultivation shall be deemed to have  acquired  a
right to hold it for the purpose of cultivation.




24.   We find similar definition of tenant under the Rajasthan Tenancy  Act,
1955.  Section 5(43) defines the word 'tenant' as under :-

"(43) "Tenant" shall mean the  person  by  whom  rent  is,  or,  but  for  a
contract, express  or  implied,  would  be,  payable  and  except  when  the
contrary intention appears, shall include -

(a)   in the Abu area, a permanent tenat or protected tenant,

(b)   In the Ajmer area, an ex-proprietory tenant or an occupancy tenant  or
a hereditary tenant or a non-occupancy tenant or a Bhooswami or Kashtkar,

(c)   in the Sunel area, an ex-proprietory tenant or a pakka  tenant  or  an
ordinary tenant,

(d)   a co-tenant,

(e)   a grove-holder,

(f)   a village servant

(ff)  a tenant holding from a landowner,

(g)   a tenant of Khudkasht,

(h)   a mortgages of tenancy rights, and

(i)   a sub-tenant

but shall not include a grantee at a favourable rate of rent or an  ijaradar
or a thekadar or a trespasser"




25.  Now we shall discuss the decisions relied upon by the  learned  counsel
on either side.  In Dhanapal Chettiar's  case  (supra),  the  question  that
came for consideration before the larger Bench  of  this  Court  was  as  to
whether under the Rent Control Act notice under Section 106 of the  Transfer
of Property Act is necessary for  the  purpose  of  proceeding  against  the
tenant for his eviction  on  the  grounds  mentioned  in  the  Rent  Control
Legislation.  This Court held that in the case of eviction  under  the  Rent
Act, the tenancy actually terminates on the passing of the order  or  decree
for eviction.  Hence, determination  of  a  lease  in  accordance  with  the
Transfer of Property Act is not necessary and a mere surplusage because  the
landlord cannot get eviction of the tenant even  after  such  determination.
The tenant continues to be so even thereafter.



26.   Similarly the  decision  relied  upon  by  the  respondent  in  Bhupal
Prasad's case (supra) is also  have  no  application  in  the  present  case
inasmuch as it was a case under the Rent Control  Act.   In  our  considered
opinion, the aforesaid two decisions of this Court deal with the  status  of
the tenant under the Rent Control Act after the expiry of fixed  term  lease
and the right of landlord to get eviction on certain grounds.  In  the  case
of tenant holding agricultural land, the tenancy and procedure of  ejectment
of tenant are governed by relevant State Tenancy  Laws,  which  are  special
Act and such tenancy is not covered by Transfer of Property Act.



27.   In the case of Sukhdev Singh (D) thr. Lrs. & ors. vs.  Puran  &  ors.,
[SLP(C)No.18654 of 2008], a Bench of this  Court  on  consideration  of  the
provisions of the Punjab Security of  Land  Tenure  Act,  1953  was  of  the
opinion that after the expiry of  the  fixed  term  tenancy  in  respect  of
agricultural land, the provision of 1953 Act will have no  application.  The
Court observed:-

      "In our view, the aforesaid argument of the learned counsel  does  not
merit acceptance.  Admittedly, the petitioners were  granted  lease  of  the
suit land in 1955 for a period of 20 years  and  the  term  of  their  lease
ended in 1975.  Section 9 of the 1953 Act is attracted only  when  a  tenant
is sought to be evicted. The said section is not applicable to a case  where
the tenancy gets terminated by efflux of time and the person  occupying  the
lease premises no longer remains tenant.  There is no provision in the  1953
Act similar to those contained in the Urban Rent Control Legislations  under
which a tenant becomes statutory tenant  after  expiry  of  the  contractual
tenure of the tenancy."



28.   In the case of Bhajan Lal vs.  State  of  Punjab,  (1971)  1  SCC  34,
considering the provisions of Sections 9, 14A and Section 18 of  the  Punjab
Security of Land Tenure Act, 1953 and discussing the right of the tenant  to
purchase the land, this Court held:

"6. It was urged that since Section 18 commences with a non-obstante  clause
viz. "Notwithstanding anything to the contrary contained in any  law,  usage
or contract", if a proceeding in ejectment  is  lodged  against  the  tenant
which ulitmately is allowed, the tenant  cannot  make  a  claim  during  the
pendency of the proceeding to purchase the land. To hold otherwise,  it  was
urged, would enable a tenant in default to defeat the claim  in  a  suit  in
ejectment by commencing a proceeding for purchasing  the  land.  We  do  not
think  that  the  expression  "Notwithstanding  anything  to  the   contrary
contained in any law, usage or contract" whittles  down  the  right  of  the
tenant at the date when he  makes  a  claim  to  purchase  the  land  merely
because the tenancy is liable to be terminated in a proceeding then  pending
for an order in ejectment under Section 14-A, at the instance of  the  land-
owner. Under the Act, the tenancy does not stand terminated  merely  because
a proceeding in ejectment is instituted. The tenancy is determined  only  in
the conditions prescribed by  Section  9  and  in  the  manner  provided  by
Section 14-A. If a tenant is in default in payment of  rent  the  land-owner
desiring to recover rent due by the tenant  may  apply  in  writing  to  the
Assistant Collector who shall thereupon send  a  notice  to  the  tenant  to
deposit the rent due or give proof of having paid it. If  the  tenant  fails
to pay the rent or give proof of payment,  the  Assistant  Collector  shall,
after a summary inquiry, if he is of the view that the tenant has  not  paid
or deposited the rent, eject the tenant summarily and put the land-owner  in
possession of the land concerned. But so long  as  the  Assistant  Collector
has not passed the order ejecting the tenant the right of the tenant is  not
extinguished: he continues to remain a tenant  and  being  a  tenant  he  is
entitled to exercise his right to purchase the land."



29.   In Sanwat Singh vs. Zail Singh, (1997) 9  SCC  468,  while  discussing
tenant's right under 1953 Act in a case where the land in possession of  the
tenant is sold by the owner of the land, this Court held that  a  tenant  as
defined under Punjab Tenancy Act, 1887 means a person  who  holds  the  land
under another person and is, but for a special contract,  would  be,  liable
to pay rent and he is  liable to be evicted only  under  certain  conditions
as provided under Section 9 of the said Act.  Referring  Section  9  of  the
said Act, this Court held:

"5. In other words, notwithstanding anything contained in any other law  for
the time being in force, including  the  law  relating  to  prescription,  a
tenant in possession of the demised property by the vendor is not liable  to
ejectment except in accordance with the provisions contained  in  Section  9
of the Punjab Security of Land Tenures Act, 1953. It is not  his  case  that
he has contravened any of the provisions and is liable to be  ejected.  Even
otherwise, if his case is that he has contravened  any  of  the  provisions,
unless appropriate action in accordance with law is taken and order  passed,
he  is  entitled  to  resist  unlawful  interference  with  the  possession.
Thereby, the decree granted by the appellate  court  and  confirmed  by  the
High Court is not correct in law."




30.   In Tulsi vs. Paro, (1997) 2 SCC  706,  this  Court  after  considering
provisions of Section 105 of the Transfer of Property Act observed:

"It is not necessary that lease should always be reduced  to  writing.  What
is necessary is for transfer of a right of enjoyment of  the  property  made
for a certain time, expressed  or  implied  and  for  consideration  of  the
price, paid or promised, the transferee must have been put in possession  of
the demised property. It is also necessary that an agreement can be  entered
into for rendering periodical service and for consideration thereof  and  on
transfer of the land  to  the  transferee  and  acceptance  thereof,  either
orally or in writing, the lease comes into existence. It is seen  that  when
the name of the appellant has successively found place in  the  records  for
the period from 1951-52 to  1971-72  as  "tenant  at  will",  the  necessary
conclusion is that he is a tenant at will liable to  eviction  according  to
law. The theory that he is a licensee, as has  been  accepted  by  the  High
Court and the trial court, is untenable. A licensee  has  no  right  in  the
property, not to speak of any right  to  the  exclusive  possession  of  the
property and animus of possession always  remains  with  the  licensor;  the
licensee gets the possession only with the consent of the  licensor  and  is
liable to vacate when so asked. In this case, since the  appellant  remained
in uninterrupted possession and  enjoyment  of  the  property  for  over  20
years, it is unthinkable to conclude that they are only licensee.  The  High
Court and the trial court, therefore, were clearly in error in reaching  the
conclusion that the appellant is only a licensee. On the  other  hand,  from
the facts, it is clear that the appellant is a tenant and he will be  liable
for ejectment only in accordance with law. If he is  otherwise  entitled  to
tenancy right of the property, the right can be had in accordance  with  law
and it is open to him to work out the same in accordance with law."


31.   In the case of Ram Lal vs. Darshan Lal and ors., (2008) 3 RCR  (Civil)
427, a Bench of Punjab and Haryana High Court was considering the  right  of
the tenant conferred by Section 9 of  the  1953  Act.   In  that  case,  the
tenant was in possession of the agricultural land on the basis of the  lease
for 20 years.  Upon expiry of the said lease period, a suit  for  possession
was filed contending that after expiry of the lease the tenant's  possession
became illegal and unauthorized.  Hence, he  is  liable  to  be  evicted  by
obtaining a decree from  civil  court.   Rejecting  the  contention  of  the
landlord, the High Court held that in terms of provisions contained in  1953
Act, a tenant shall be evicted only on the grounds mentioned  in  Section  9
of the said Act.  The Court observed

"6. In Shri Raja Durga Singh Versus Tholu and others, AIR 1963  SC-361,  the
Court  found  that  suit  for  possession  and  mesne  profits  against  the
defendant who claims to be occupancy tenant and  status  as  tenant  is  not
barred from the cognizance of the  Civil  Court.  However,  in  the  present
case, it is the admitted fact that defendant No.1  was  inducted  as  tenant
for a period of 20 years. Therefore,  the  question  which  requires  to  be
examined is whether after the expiry of the period of lease, the tenant  can
be evicted by filing a Civil Suit for possession. The said question was  not
the question raised or decided in the aforesaid  judgment.  Therefore,  even
the said judgment provides little assistance to the appellant.



7. In the present case, the  Punjab  Security  of  Land  Tenures  Act,  1953
protects the tenancy of agricultural land  in  favour  of  the  tenant.  The
Punjab Security of Land Tenures Act, 1953 specifies the grounds of  eviction
which are available to the landlord. The eviction  of  a  tenant  after  the
expiry of lease is not a ground  mentioned  therein.  Therefore,  after  the
expiry of lease, the tenant would be a statutory tenant and such tenant  can
be  evicted  only  in  terms  of  one  or  the  other  grounds  of  eviction
contemplated under Section 9 of the Punjab Security  of  land  Tenures  Act,
1953.  Such eviction proceedings have to be initiated before  the  competent
Revenue Court. Therefore, I do not find any illegality  or  irregularity  in
the finding recorded that the Civil Court has no  jurisdiction  to  grant  a
decree for possession."





32.   Taking into consideration the various tenancy laws applicable  in  the
State of Punjab and the law discussed by this Court and the High  Court,  in
our considered opinion the trial court, the appellate  court  and  the  High
Court have committed error of law in holding that a tenant  of  agricultural
holding becomes a trespasser after the expiry of  period  of  tenancy.   The
High  Court  and  the  lower  courts  have  failed  to  consider  that   the
agricultural tenancy are governed  by  the  State  Tenancy  Laws  which  are
special Acts for the purpose of regulating the tenancy  and  protecting  the
tenants from eviction without following  the  procedure  provided  in  those
State Laws.  The procedure for eviction of tenant in occupation of  building
by  approaching  the  civil  court  under  Rent  Control  Act  will  not  be
applicable for evicting the  tenants  holding  agricultural  land.   We  are
further of the view that it is the  Revenue  Court  specially  empowered  to
take action for eviction of tenant in the  manner  provided  under  the  Act
notwithstanding any contract on the  basis  of  which  the  tenant  occupied
possession of the agricultural land for the purpose of cultivation.



33.   Be that as it may, in Sukhdev Singh's case (supra)  a  Bench  of  this
Court on consideration of the provisions of Punjab Security of Land  Tenures
Act, 1953 was of the opinion that after the expiry of fixed term tenancy  in
respect of agricultural land, the tenancy gets terminated by efflux of  time
and person occupying the lease premises no longer remains tenant.  With  due
respect, we are not in agreement with  the  view  taken  by  this  Court  in
Sukhdev Singh's case (supra).



34.   In the aforesaid circumstances, to maintain judicial  discipline,  the
matter needs to be referred to a larger Bench  for  laying  down  a  correct
law.



35.   We, therefore, direct the Registry to place the record before  Hon'ble
the Chief Justice of India for placing the matter before a larger Bench.



                                        ..................................J.
                                                                (M.Y. Eqbal)



                                        ..................................J.
                                                         (Shiva Kirti Singh)
New Delhi
February 27, 2015

whether after the disposal of the appeal, the Court Receiver stands discharged or whether he continues in his office till an order of discharge is passed by the Court? -when a Receiver is appointed pending suit or appeal, the prime objective is to preserve the property by taking possession or otherwise and to keep an account of rent and profits that may be realized by the Receiver and to submit it before the court till the lis is finally decided. Ordinarily the function of receivers who are appointed comes to an end with the final decision of the case. However, even after the final decision, the Court has the discretion to take further assistance of the Receiver as and when the need arises. In the instant case, admittedly, the appellants have already put the decree in execution for recovery of possession. We are, therefore, of the opinion that the Executing Court while executing the decree may take assistance of the Receiver or by appointing new Receiver or Commissioner for effecting delivery of possession in accordance with law and not more than that.=2015 SC msklawreports.


     

the suit property was  declared  as  evacuee  property
and the same was purchased by the appellant in an auction sale as  far  back
as on 15.6.1964.  In the year 1980, the appellant filed a suit  being  Civil
Suit No. 37 of 1980 before the District Judge, Thane Court seeking  specific
performance of the sale of the property and possession  and  interim  relief
of injunction restraining the defendants therein from  carrying  on  further
construction on the suit property. The appellant further made a  prayer  for
appointment of Receiver. Trial court rejected to appoint receiver. 
But High court appointed the receiver.
The High Court while making  appointment  of
the Receiver directed to take possession  of  the  suit  property. 
 All  the
persons who were in actual possession of any part of the suit property  were
continued to remain in possession.  The Receiver  was  directed  to  collect
rent and compensation as the case may be from  all  the  persons  in  actual
possession after verifying from  them  their  present  right  to  remain  in
possession. The High Court further directed that the  Receiver  should  take
suitable  direction  from  the  court  if  he  was  presented  with      any
particular difficulty.
 Indisputably, the suit was finally disposed  of  on  4.2.1998.   While
disposing the suit, the trial court gave liberty to the  plaintiff-appellant
to move the High Court for directions for  taking  possession  of  the  suit
property from the Court Receiver so appointed by the High Court.
The  High  Court  after  taking  into
consideration these Court Receiver's  reports,  passed  the  impugned  order
holding that the receiver shall be deemed to have been discharged after  the
dismissal of the first appeal by the High Court, followed  by  dismissal  of
the Special Leave Petition by the Supreme Court.
Apex court held that
In our view, when a Receiver is appointed pending suit or appeal,  the
prime objective  is  to  preserve  the  property  by  taking  possession  or
otherwise and to keep an account of rent and profits that  may  be  realized
by the Receiver and to submit it before the court till the  lis  is  finally
decided.  Ordinarily the function of receivers who are  appointed  comes  to
an end with the final decision of the case.  However, even after  the  final
decision, the Court has the discretion to take  further  assistance  of  the
Receiver as and when the need arises.  In the instant case, admittedly,  the
appellants have  already  put  the  decree  in  execution  for  recovery  of
possession.  We are, therefore, of the  opinion  that  the  Executing  Court
while executing the decree  may  take  assistance  of  the  Receiver  or  by
appointing  new  Receiver  or  Commissioner  for   effecting   delivery   of
possession in accordance with law and not more than that.

 In the facts and circumstances of the case, we do not find  any  error
in the impugned order passed by the High  Court.   The  Civil  Appeals  are,
therefore, of no merit and are dismissed. - 2015 SC msklawreports

Representation of the People Act, 1951 Section 86 (7) - Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.=election disputes under the Representation of the People Act, 1951 should be resolved expeditiously. The purpose is obvious. The tenure of the members of the Parliament as well as the Legislature of the State is relatively short. It is five years in the case of Lok Sabha and Legislative Assembly, and six years in the case of Rajya Sabha and Legislative Council. Therefore, if there is a dispute regarding the election of any member of any one of the said bodies, it is desirable that the dispute is resolved as early as possible for various reasons.

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NOS. 2538-40 OF 2015
            (Arising out of SLP (Civil) Nos.  2487-2489 of 2015)

Mohd. Akbar                                  ...Appellant

Versus

Ashok Sahu & Ors.                                  ...Respondents


                               J U D G M E N T


Chelameswar,  J.

1.    Leave granted.

2.    The General Election to Chhattisgarh Legislative Assembly  took  place
in 2013.   The appellant herein is one of the contesting candidates for  72-
Kawardha Legislative Assembly Constituency.

3.     Polling  took  place  on  19.11.2013.  The  result  was  declared  on
8.12.2013.   First respondent was declared elected.  The  appellant  secured
the second highest number of votes in the said election.  On 20.1.2014,  the
appellant filed Election Petition No. 4 of 2014 challenging the election  of
the first respondent on various grounds including the commission of  certain
corrupt practices.  On 29.1.2014, the  High  Court  issued  summons  to  the
respondents.

4.    It appears that matter was listed  on  25.3.2014.    It  is  not  very
clear from the records whether all  the  respondents  were  served  or  not.
But from copy of the order dated 25.3.2014, it appears that only  respondent
Nos. 1, 5, 9 and 10 were represented by counsel and other  respondents  were
not represented.   The High Court recorded an order as follows:-
"There is an oral prayer made for  extension  of  time  for  filing  written
statement but there is no application is writing in that regard.

In the interest of justice, three days time is granted  to  learned  counsel
for the respondent to file application if any."

5.    On 26.3.2014, the first respondent herein  filed  two  applications  -
one invoking Order VII Rule 11 of the Code of  Civil  Procedure,  1908  (for
short "CPC") and another  raising  certain  preliminary  objections  to  the
maintainability of the election petition.

6.    On 2.4.2014, two more interlocutory applications  came  to  be  filed,
one each at the instance of respondent No. 1 and  10  seeking  extension  of
time for filing the written statement.  The said applications  were  allowed
and the High Court granted another 30 days'  time  for  filing  the  written
statement.

7.    Thereafter the matter underwent number of  adjournments,  the  details
of which may not be necessary for the purpose of this  order.    Eventually,
arguments on Order VII Rule 11 CPC were heard in part on 27.6.2014.    After
two more adjournments, on 1.7.2014 arguments on the said  applications  were
concluded and the matter was fixed for orders  on  21.7.2014.  However,  the
order was not pronounced and the matter was again  adjourned  for  30.7.2014
on which date the interlocutory applications filed by the  respondents  were
dismissed.

8.    On 14.8.2014, appearance was entered on behalf of respondent No. 8  by
one Shri Ashish Shrivastav, who is none other than the  brother  of  Justice
Manindra M. Srivastava who was the  Judge  hearing  the  Election  Petition.
Justice Manindra Srivastava promptly recused from the election petition  and
in our  opinion  rightly.   On  such  recusal,  the  election  petition  was
allotted to another learned Judge.

9.    In the meanwhile on 26.8.2014, a complaint  regarding  the  appearance
by the above-mentioned Ashish  Srivastav  was  made  to  the  Hon'ble  Chief
Justice.   The election petition was further adjourned.

10.   It appears that respondent  No.  8  filed  another  application  under
Order VII Rule 11 of CPC.  But, the  counsel  for  respondent  No.  8,  Shri
Ashish Srivastava filed an application seeking permission  to  withdraw  his
Vakalatnama.   The said application was allowed  by  the  High  Court.    On
28.11.2014, a Vakalatnama came to be filed by Shri B.P. Gupta on  behalf  of
the respondent No. 1 though there is another counsel on record already.   It
appears that at the instance of Shri B.P. Gupta, the matter was  once  again
adjourned ostensibly to enable Shri B.P. Gupta to get ready with  the  case.
On 4.12.2014, the application filed by the respondent No. 8 under Order  VII
Rule 11 came to be dismissed.

11.   Broadly, it is in the above-mentioned background the instant SLP  came
to be filed complaining that notwithstanding the mandate of Section 86, sub-
Section (7) of the Representation of the People Act, 1951,  the  High  Court
has not disposed of the election petition so far.   Section 86, sub-
Section (7) reads as follows:-
Section 86 (7) - Every election petition shall be tried as expeditiously  as
possible and endeavour shall be  made  to  conclude  the  trial  within  six
months from the date on which the election  petition  is  presented  to  the
High Court for trial.


12.   It was the pious hope of the Parliament that election  disputes  under
the  Representation  of  the   People   Act,   1951   should   be   resolved
expeditiously.   The purpose is obvious.  The tenure of the members  of  the
Parliament as well as the Legislature of the State is relatively short.   It
is five years in the case of Lok Sabha and  Legislative  Assembly,  and  six
years in the case of Rajya Sabha  and  Legislative  Council.  Therefore,  if
there is a dispute regarding the election of any member of any  one  of  the
said bodies, it is desirable that  the  dispute  is  resolved  as  early  as
possible for various reasons.
(i)    Membership  of  the  Legislative  bodies  under  the  scheme  of  our
constitution is a sacred responsibility. The continuance of  any  member  in
such  bodies  who  secured  his  election  to  such  a   body   by   legally
impermissible means even for a day is  most  undesirable.  Such  continuance
affords an opportunity to such a member to  take  part  in  the  law  making
process affecting the destinies of the people.
(ii)  Even from the point of view of the contesting candidates,  unless  the
rights and the  obligations  are  decided  within  a  reasonable  time,  the
adjudication and the consequences of the adjudication may eventually  remain
on paper without any tangible effect insofar as the  participation  of  such
parties in the legislative process.

13.   However, we are  sad  to  state  that  invariably  the  resolution  of
election disputes in this country takes unacceptably long  periods  in  most
of the cases.  Very rarely an election  dispute  gets  resolved  during  the
tenure of the declared candidate reducing the adjudicatory  process  into  a
mockery of justice.  Such delay coupled with  a  right  of  appeal  to  this
Court makes the whole process of adjudication a task in  a  good  number  of
cases.   The reasons are many, we will only mention few;
The stakes are very high for the parties.  Nothing short of  the  membership
of a constitutional body for a limited period. The power and glory  that  go
with such membership is too high and valuable and  the  returned  candidates
naturally leave no stone unturned for protracting the litigation as long  as
possible.

The  law  of  elections  and  election   disputes   is   highly   technical.
Therefore, there is always scope for lot of objections and  cross-objections
regarding every step in the conduct of the election petition.

The absence of dedicated Benches in the High Court  for  resolution  of  the
election disputes is another factor  which  contributes  enormously  to  the
delay in the adjudicatory process.

14.   We therefore deem it desirable  that  in  each  High  Court  dedicated
Benches are  created  by  the  Chief  Justice  to  deal  with  the  election
petitions exclusively.   In other words,  those  judges  assigned  with  the
adjudication of election petitions preferably may not be burdened  with  any
other work until the adjudication of the election  petitions  is  completed.
An exercise which may not be difficult especially the  class  of  litigation
occurs only once in 5 or 6 years and the  number  of  cases  would  be  very
limited.  We are conscious of the fact that it is not  possible  for  laying
down any absolute rules in this regard.   Essentially  it  is  for  a  Chief
Justice of the High Court to run the  administration  and  devise  ways  and
means for expeditiously disposing of  the  cases  brought  before  the  High
Court.   We only gently remind that the kind of delay  in  the  adjudication
of election disputes exposes the High Court's unpleasant criticism  damaging
the  credibility  of  the  institution.   A  situation  which  is  certainly
required to be avoided at any cost.

15.   The facts of the present case are telling. Some 15  months  after  the
election, the trial of the election petition has not yet commenced.  In  the
circumstances, we deem it appropriate to request the Chief Justice  to  take
necessary steps for  disposal  of  the  Election  Petition  No.  4  of  2014
expeditiously, by devising such appropriate measures as  the  Hon'ble  Chief
Justice may deem fit and proper in the circumstances.

16.   We also place on record our disapproval of the tactics adopted by  the
respondents in engaging counsel whose appearance is bound to  embarrass  the
presiding Judge and we feel sad for the  noble  profession,  some  of  whose
members are willing to take part in such unwholesome practices.

17.   Appeals are accordingly disposed of.


                                       ...................................J.
                                                         (J. Chelameswar)


                                       ...................................J.
                                            (Rohinton Fali Nariman)
New Delhi;
February 27, 2015

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