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Wednesday, July 27, 2016

Statutory protection would be available only to a statutory tenant, namely, a tenant under the Act. The Punjab Act of 1953 read with the relevant provisions of the 1887 Act do not include a tenant whose lease has expired. Nevertheless, retention/continuance of possession after expiry of the duration of the lease with the consent of the landlord will continue to vest in the erstwhile tenant the same status on the principle of holding over. Such continuance even after expiry of the deemed period of the lease under Section 106 of the Transfer of Property Act, as in the present case, would clothe the occupant with the status of a tenant under the Act in view of Section 116 of the Transfer of Property Act which deals with the consequences of holding over. The operation of Section 116 of the Transfer of Property Act would confer legitimacy to the possession of the tenant even after the termination or expiration of the deemed period of the lease so as to confer on him a status akin to that of a statutory tenant and hence protection from eviction as envisaged by the provisions of the Act of 1953.

                                                                  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


                               J U D G M E N T


RANJAN GOGOI, J.


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

2.    It will be useful to notice, at  this  stage,  some  of  the  relevant
provisions of the Statutes dealing with the issue. “Tenant”  is  defined  by
Section 2(6) of the 1953 Act in the following terms:
“Tenant” has the meaning assigned to it in  the  Punjab  Tenancy  Act,  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.”





3.    Section 4(5) of the Punjab Tenancy Act, 1887 (hereinafter referred  to
as “the 1887 Act”) defines “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.”



4.    The 1887 Act confers occupancy rights on the  occupants  of  land  who
fulfill the requirements spelt out  by  Section  5  thereof.   An  occupancy
tenant is liable for ejectment under the 1887 Act on the  grounds  specified
in Section 39(1), namely,
(a) that he has used the land comprised in the tenancy  in  a  manner  which
renders it unfit for the purpose for which he held it;
(b) where rent is payable in kind, that  he  has  without  sufficient  cause
failed to cultivate that land in the manner or to the  extent  customary  in
the locality in which the land is situate;
(c) when a decree for an arrear of rent in respect of his tenancy  has  been
passed against him and remains unsatisfied.

5.    On the other hand, under Section 40 of the  1887  Act,  a  tenant  who
does not have a right of occupancy but holds  the  land  for  a  fixed  term
under a contract is liable to be ejected from his tenancy on the  expiry  of
the term of the lease and before such expiration on the following grounds:
“(a)  that he has used the land comprised in the tenancy in a  manner  which
renders it unfit for the purposes for which he held it;



(b)  where 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.”



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


“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.”


7.    It will be necessary at this stage to take note of Section 14A of  the
1953 Act which deals with the procedure for ejectment:
“14-A. Notwithstanding anything to the contrary contained in any  other  law
for the time being in force, and subject to the provisions of section 9-A.-


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“

8.    Before proceeding any further it  must  be  clarified  that  both  the
enactments i.e. the 1887 Act and the 1953 Act are in force and  continue  to
operate  in  their  respective  fields.  Insofar  as  common   spheres   are
concerned, the 1953 Act  by  virtue  of  the  non  obstante  clause  in  the
relevant provisions prevail over the pari materia  provisions  of  the  1887
Act. Section 40 of the 1887  Act  dealing  with  ejectment  of  tenants  and
Section 9 of the 1953 Act is one instance where such  an  interplay  between
the provisions of the two Acts occur.
9.    The arguments advanced on behalf of the  rival  parties  relate  to  a
true and proper construction of the provisions of Section 9 and 14-A of  the
1953 Act in the light of the definition of “tenant” under both the Acts  and
also the provisions of Section 39 and 40 of the  1887  Act.   It  is  argued
that the appellant herein is a self-cultivating  lessee  and,  therefore,  a
tenant under Section 2(6) of the 1953 Act entitling him to protection  under
Section 9 of the Act. A person who is a tenant under the  1953  Act  can  be
ejected only on any of the grounds enumerated in Section 9 of the 1953  Act.
Such protection does not cease merely on the expiry of period of tenancy  in
view of the  statutory  protection  granted  under  the  Act.  In  fact  the
contractual tenancy loses all relevance in case of a lessee who is a  tenant
under either of the statutes in question. Though under  Section  40  of  the
1887 Act eviction of a tenant on  completion  of  the  period  of  lease  is
contemplated, there is no such provision in the 1953 Act. The  non  obstante
clause in Section 9 gives the said provision of the 1953 Act  an  overriding
effect over the aforesaid provisions of the 1887 Act. Sub-section (viii)  of
Section 9 of the Act of 1953, introduced by Punjab Act 17 of 2011 (not  made
applicable to the State of Haryana) has also been placed before  the  Court.
Besides, the procedure for ejectment/eviction must  necessarily  conform  to
what is spelt out in Section 14-A  of  the  1953  Act  and  proceedings  for
eviction must be before the Revenue  authority  and  not  the  Civil  Court.
These are the broad propositions that have been advanced on  behalf  of  the
appellant to answer the question arising.
10.   In reply, it is contended that statutory protection to a tenant  would
be available  after  the  expiry  of  the  fixed  term  lease  only  if  the
definition of tenant under the Act is  broad  enough  to  include  a  person
whose contractual period of  tenancy  is  over.  No  such  provision  exists
either under the 1887 Act or the 1953 Act.   The  definition  of  tenant  in
either of the Statutes does not include a tenant whose period of tenancy  is
over. In the absence of any such provision, a person whose period  of  lease
is over ceases to be a  tenant  and,  therefore,  is  not  entitled  to  the
protection under the 1953 Act. A self- cultivating lessee would be a  tenant
under the Act only for the duration of the lease. On expiry  of  the  period
of the lease he would cease to be a tenant unless the  statute  specifically
provides for such a status which is not so provided for  by  either  of  the
Acts i.e. Act of 1953 and of 1887.
11.   In the present case, admittedly, eviction of the tenant had  not  been
sought on any of the grounds enumerated in Section 9 of the 1953 Act and  by
following the procedure under Section 14-A of the 1953 Act. In fact,  it  is
the appellant before this Court who had filed a suit for injunction  seeking
a restraint on his ouster and it is in the said suit that the  respondent  –
landlord, as the defendant, had filed a  cross-objection  seeking  mandatory
injunction for the vacation of the premises by the appellant-tenant  on  the
ground that he had ceased to be a tenant on expiry of the period of lease.
12.   Having noticed the elaborate  arguments  advanced  on  behalf  of  the
parties, we may now proceed to deal with the specific question  referred  to
us, as noticed above,  and  in  this  regard  take  note  of  the  questions
formulated by the High Court for an answer in the second  appeal  before  it
which is in the following terms-
(i)   Whether a tenant/lessee of agricultural land  can  be  ordered  to  be
evicted by way of suit for mandatory injunction or the only remedy with  the
landlord is to seek eviction under the provisions of the Punjab Security  of
Land Tenures Act, 1953
(ii)  Whether the lease deed  of  an  agricultural  land  is  admissible  in
evidence in the absence of registered instrument as required  under  Section
107  of  the  Transfer  of  Property  Act,  1882  and  Section  17  of   the
Registration Act, 1908.
 13.  The Transfer of Property Act, 1882, as evident from opening  provision
thereof, makes it clear that it is not to be  applicable  to  the  State  of
Punjab (including the present State of Haryana which  was  included  in  the
erstwhile State of Punjab).  However, by a Gazette Notification  dated  26th
March, 1955  (No.1605-R(CH)-55/589)  published in the Punjab  Govt.  Gazette
dated 1st April, 1955 (Part I, page 372) the provisions of Sections 54,  107
and 123 of the Transfer of Property Act, 1882 were  extended to  the  entire
State of Punjab with effect from 1st April, 1955. The  Gazette  Notification
in question reads as follows:
“The 26th March,  1955  No.1605-R(CH)-55/589.  In  exercise  of  the  powers
conferred by section 1 of the Transfer of Property Act, IV of 1882, and  all
other powers enabling him in this behalf, the Governor of Punjab is  pleased
to extend the provisions of sections 54, 107 and 123 of the  said  Act  with
effect from the 1st April, 1955 to the entire State of  Punjab.  The  Punjab
Government notification No.183-ST dated the 27the  April,  1935,  is  hereby
cancelled.”

14.   Sections 54, 107 and 123 of the Transfer of Property  Act,  1882  were
applied to the PEPSU area of that State with effect from 15th May,  1957  by
Notification dated  15th  May,  1957  published  in  the  Punjab  Government
Gazette (Extraordinary) (at page 633 dated 15th May, 1957), which is in  the
following terms:
                         “Punjab Government Gazette
                                Extraordinary
                           Published by Authority
                     Chandigarh, Wednesday, May 15, 1957
                             Revenue Department
                                Notification
                             The 15th May, 1957

No.305-ST-57/2166.- In exercise of the powers conferred by section 1 of  the
Transfer of Property Act, 1882 (Central Act  IV  of  1882),  and  all  other
powers enabling him in this behalf, the Governor of  Punjab  is  pleased  to
extend the provisions of Sections 54, 107 and 123 of the  said  Act  to  the
territories  which,  immediately  before  the  1st  November,   1956,   were
comprised in the State of Patiala and East Punjab States Union, with  effect
from the date of publication of this notification in the official Gazette.”

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

16.   The above is inextricably connected to the issue of  determination  of
the primary question arising, namely, whether the lease between the  parties
is a fixed term lease or not, a question that would depend  for  its  answer
on the terms of the  lease  deed  between  the  parties.  Unfortunately  and
regrettably the Gazette Notifications referred to above were not brought  to
the notice of the High Court leading the High Court to answer  the  question
framed by holding that Section 117 of the Transfer  of  Property  Act  makes
the provisions of Section 107 inapplicable  to  an  agricultural  lease  and
therefore the terms of the lease can be looked into for a  determination  of
the above question.

17.   It is not in dispute that in the present  case  the  appellant  tenant
remained in possession of the land for  the  fixed  term  envisaged  in  the
lease agreement i.e. from  29th  May,  1996  to  28th  May,  2005  and  even
thereafter.  As the lease in question was not a  registered  instrument  and
as Section 117 of the Transfer of Property Act has  no  application  to  the
State of Haryana, in view of the provisions of Sections 17  and  49  of  the
Registration Act read with Section 107 of  the  Transfer  of  Property  Act,
1882 the terms of the lease deed would not be admissible  in  evidence  and,
therefore, cannot  be  looked  into  for  the  purpose  of  determining  the
duration of the lease.  Though in Anthony v. K.C. Ittoop &  Sons  &  Ors.[2]
it was held that in such a situation a oral lease  not  exceeding  one  year
can be presumed it must not be lost sight that in Anthony (supra) the  lease
in question was one under the Kerala  Buildings  (Lease  and  Rent  Control)
Act, 1965, namely, a non-agricultural  lease.   In  the  present  case,  the
lease being admittedly an agricultural lease the same can be  deemed  to  be
from year to year in view of the provisions of Section 106 of  the  Transfer
of Property Act.

18.   If the lease in the instant case has to be deemed to be a  lease  from
year to year and the terms thereof cannot be looked into  to  determine  the
total duration thereof what would follow is  that  the  tenant  remained  in
possession beyond the legally presumptive period of  the  lease  (one  year)
with the implied consent of the landlord.  In the present case such  consent
ceased to exist only upon institution of the cross  objection  in  the  suit
filed by the tenant, as mentioned earlier.  The tenant, therefore,  acquired
the status of a tenant holding over or a tenant at will, which would  confer
on him protection under the 1953 Act requiring  the  landlord  to  establish
proof of any of the conditions specified  in  Section  9  of  the  1953  Act
before being entitled to a decree of eviction.   From  the  above  it  would
necessarily follow that to be entitled to  protection  from  eviction  under
the 1953 Act any person claiming such protection  has  to  come  within  the
fold of the expression “tenant” under the 1953 Act read  with  the  relevant
provisions of the 1887 Act.  Statutory protection would  be  available  only
to a statutory tenant, namely, a tenant under the Act.  The  Punjab  Act  of
1953 read with the relevant provisions of the 1887  Act  do  not  include  a
tenant whose  lease  has  expired.  Nevertheless,  retention/continuance  of
possession after expiry of the duration of the lease  with  the  consent  of
the landlord will continue to vest in the erstwhile tenant the  same  status
on the principle of holding over. Such continuance even after expiry of  the
deemed period of the lease under Section 106 of  the  Transfer  of  Property
Act, as in the present case, would clothe the occupant with the status of  a
tenant under the Act in view of Section 116 of the Transfer of Property  Act
which deals with  the  consequences  of  holding  over.   The  operation  of
Section 116 of the Transfer of Property Act would confer legitimacy  to  the
possession of the tenant even after the termination  or  expiration  of  the
deemed period of the lease so as to confer on him a status akin to  that  of
a statutory tenant and hence protection from eviction as  envisaged  by  the
provisions of the Act of 1953.
19.   We accordingly answer the question referred in the  above  terms,  and
allow this appeal and further set aside the order of the  High  Court  under
challenge.

                                 ........................................,J.
                                        (RANJAN GOGOI)


                     ......................................,J.
             (ARUN MISHRA)


                                 ......... ..............................,J.
                                       (PRAFULLA C. PANT)
NEW DELHI;
JULY 05, 2016.
-----------------------
[1]     (2015) 12 SCC 344
[2]    (2000) 6 SCC 394

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