Balkar Singh and another vs Commissioner Jullundur Division, Jullundur and another

K.S. Bhalla, J.

Four petitioners, two each in Civil Writ Petition Nos. 5989 of 1985 and 1698 of 1986, impugned the orders of their ejectment from the land in dispute purported to have been passed under Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 (in short the Act hereinafter) by Collector Batala and Commissioner Jullundur Division, Jullundur, impleaded amongst respondents. In view of the identity of facts and the contentions raised, these petitions are being disposed of through this common order.

The contention of the State precisely is that land was given on lease to the petitioners for one year (196970) and (196869) and after the lapse of contractual period of tenancy their possession became unauthorised. The petitioners, on the other hand, have pleaded that they continued to be in possession of the land as a result of which it turned into tenancyatwill and without its determination, their possession could not be treated to be unauthorised so as to evict them under the Act. Thus it is the common case of the parties that to start with, a tenancy was created in favour of the petitioners and their possession cannot be said to be unauthorised from inception and also that term of the lease was one year. It is obvious from the revenue record that the petitioners continued to remain in possession even after the lapse of the contractual period of tenancy and they are recorded as tenants on 1/3rd share of produce right upto Jamabandi 198081. Apart from that, it has been mentioned in the order of the Collector that according to the representative of the department no rent had been paid by the petitioners since 1980, meaning thereby that rent was received by the concerned department till 1980, i.e. much after the lapse of contractual period of lease/tenancy. Where a lessee remains in possession of immovable property leased even after the expiry of the period of the lease and the lessor accepts rent from him or otherwise assents to his continuing in possession, he would become by reason of the provisions of Section 116 of the Transfer of Property Act a tenant holding over. The tenancy created by the tenant holding over is a statutory tenancy which enables the tenant to retain possession after the expiry of the contractual tenancy. The statutory tenancy so created continues till it is terminated or determined. In the absence of any agreement to the contrary a statutory tenancy created under Section 116 of the Transfer of Property Act may be determined in the manner enjoined under Section 106 of the said Act. The lease of agricultural land is renewed from year to year and the tenancy created by holding over under Section 116 in this case, was, therefore, annual tenancy terminable on the part of either the lessor or the lessee by 6 months notice. The contention of lease being from year to year has also been asserted in the written statement. When the rent admittedly had been received for 10 years after April 1970, when according to the Government the lease had expired, petitioners obviously became tenants holdingover and without determination of their tenancy as contemplated under Section 106 of the Transfer of Property Act, their possession could not possibly be treated as unauthorised to entitle the Agricultural Department of the State of Punjab to take proceedings under the Act.

Petitioners also moved a writ petition in the year 1971 which was decided on October 29, 1971 (Annexure R1) and recognising the contention of holdingover, respondents were restrained from evicting the petitioners otherwise than in due course of law. That confirms the continuity of possession and recognition of the principle of holdingover between the parties. It was also decided in Bir Singh v. The State of Punjab, 1982 PLJ 276, by this Court that determination of a lease has to be in accordance with law and in the absence thereof, the lessee can holdover.

To sumup admittedly the relationship of landlord and tenant had been established between the parties and petitionerlessees continued to remain in possession even after the expiry of term of lease. That amounted to holdingover and there was no determination of the lease or tenancy in accordance with law. The petitioners, therefore, cannot be styled as unauthorised occupants of the land so as to invoke the provisions of the Act. In this view of the matter, their summary eviction under the Act cannot be treated as an action for eviction in due course of law.

In the light of the discussion above, we find that the impugned orders of Collector Batala and Commissioner Jullundur Division, Jullundur, are wholly unsustainable. These writ petitions accordingly are allowed with costs and orders for eviction of the petitioners passed under the Act are quashed.