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
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
