Chandu vs State of Haryana and Others

V.K. Jhanji, J.—By this judgment, I propose to dispose of Civil Writ Petitions No. 5256, 5257, 5258, 5259, 5260, 5261 and 7661 of 1992 as common question of law and facts is involved therein.

Haryana Agricultural University, Hissar, respondent No. 2 (hereinafter referred to as ''the University'') took the land in dispute on lease from the State Government for a period of 99 years for setting up a cotton Research Station at Sirsa. The university filed an application under Sections 4 and 5 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972, (hereinafter referred to as ''the 1972 Act'') for the eviction of the tenant from the land in dispute on the allegation that a part of the land was given on lease to the petitioner for a period of one year, i.e. 1988-89, and on the expiry of one year, petitioner was obliged to vacate the land and hand over the vacant possession and petitioner having failed to deliver possession of the land on expiry of term of one year, became an unauthorised occupant and, therefore, the university was entitled to enter into possession of the land in possession of the petitioner.

Petition filed a detailed reply to the application filed by the university, taking therein various objections, including that the land is not ''public premises'' as defined in the 1972 Act. During the pendency of the application, petitioner filed a writ petition in this Court, challenging the notice issued by the Collector under Sections 4 and 5 of the 1972 Act. This Court disposed of the said writ petition in the following terms :-

" Present : Dr. Gurmiet Singh, Advocate. The authority may pass in appropriate order in accordance with law after considering any objections raised by the petitioners. However before taking actual position, one week shall be granted to the petitioners after the communication of the order to them. They will be at liberty to approach this court or any other authority in accordance with law, if the authority passes any adverse order against them. The Writ petition is disposed of."

Subsequent to the disposal of the writ petition, petitioner filed fresh objections before the collector. Some of the objections were that in the Jamabandi for the year 1986-87, petitioner is shown as Gair Mumkin tenant on payment of 1/3rd Batai and as much, the petitioner cannot be held to be in unauthorised occupation that application under Sections 4 and 5 of the 1972 Act is not maintainable as the Civil Court has declared the petitioner to be tenant-at will; that the university has no locus standi to file application under Sections 4 and 5 of the 1972 Act.

On appreciation of evidence on record, the Collector vide his order dated 26.3.1991 allowed the application of the University and ordered eviction of the tenant. Against the order of the Collector, the petitioner filed an appeal before the Commissioner who vide his order dated 30.5.1991 set aside the order of the Collector. The only ground on which the appeal was accepted was that "Haryana Act does not confer the definition of public premises on the land taken on lease by the local authority, university etc." The order of the Commissioner was challenged by the University in writ petitions before this court. The Division Bench of this court vide order dated 28.11.1991 disposed of the writ petitions by a common judgment delivered in Civil Writ Petition No. 14207 of 1991. The order of the Commissioner was set aside by holding that the approach of the Commissioner in finding the land in dispute not ''public premises'' is, thus, not correct. The relevant part of the judgment is reproduced as under:-

"After hearing arguments of both the counsel for the parties, we find that in the revenue record the land in dispute is recorded under the ownership of the State. Section 2 (e) of the Act defines ''public premises'' as under:-

"Means any premises belonging to of taken on lease or requisitioned by or on behalf of the State Government authority requisitioned by the competent authority under the Punjab Requisitioning and Acquisition of Immovable Property Act, 1953, and includes any premises belonging to any local authority or District Solidiers. Sailors and Airmen''s board or any University established by law or any Corporation or Board owned or controlled by the State Government."

"The object of framing the Act is to protect the public premises from unauthorised occupants and it provides a summary procedure for their eviction. The definition of ''Public premises'', as reproduced above, is wide enough. It not merely embrasses the element of ownership, it also embrasses the interests of the State or the other authorities mentioned therein including the University established by law. The words "belonging to the State government or other authorities like University" gives a fare indication that the property owned or where the interest in the property belongs to the State Government or other authorities, would be covered under the definition. The word "belonging" means to pertain; to be the property of; connected with any person. The State Government continues to be the owner of the property even if the same had been leased out to any other person. Such property belonging to the State would continue to be the public-premises. By providing that property requisitioned by the competent authority under the Punjab Requisition and Acquisition of Immovable Property Act, the definition of public premises is made more conclusive. The land taken on lease by the University or other authorities, as mentioned in the definition of public premises, referred to above, would also be property belonging to the University or such authorities, it cannot be said that such properties are not connected with or do not pertain to the University or the other authorities. The approach of the Commissioner in holding the land in dispute ''not public premises'' is, thus, not correct."

Since the Commissioner had not decided the case on merits, a direction was issued to him to decide the case afresh in accordance with law. On remand, the Commissioner vide his order dated 21.1.1992, held the petitioner to be in unauthorised occupation of the land on the date when the application was filed by the university. Accordingly, the appeal filed by the petitioner was dismissed. The order of the Commissioner is being impugned in these writ petitions.

Mr. S.C. Mohunta, Sr. Advocate, and Mr. L.N. Verma Advocate, counsel for the petitioner (s) in other writ, petitions, fairly stated that they do not challenge the finding in regard to the premises being ''Public Premises'' as the same stands concluded by the Division Bench in its order dated 28.11.1991. The Counsel challenged the order of the Commissioner primarily on the ground that in the revenue record, the petitioner is shown as tenant on payment of 1/3rd Batai, and in the civil suit also, the petitioner has been held to be tenant at will, and for that matter the petitioner cannot be termed as an unauthorised occupant. Their precise contention was that the petitioner was a tenant holding over as defined in Section 116 of the Transfer of Property Act, 1982, (in short" the 1882 Act'') A reference was made to Division Bench judgment of this Court in Balkar Singh and Anr. v. Commissioner Jullundur Division, Jullundur and Anr.,1 1989 P.L.J. 101. The other contention was that without determination of lease, application under Sections 4 and 5 of the 1972 Act was not maintainable. For this, the counsel referred to Section 3(b) of the 1972 Act and also a judgment to this Court in Bir Singh v. State of Punjab and Ors.,2 1982 P.L.J. 276.

In reply, Mr. Girish Agnihotri, Advocate, for the University, contended that the land was leased out to the petitioner for a period of one year. On expiry of the lease period, he became an unauthorised occupant, with regard to the civil suits, he contended that in Civil Writ Petition No. 5258 and 5260 of 1992, the petitioners therein were held to be in unauthorised occupation of the land, but in some civil suits, reference of which has been made in the other writ petitioners, he contended that the petitioners therein were held to be tenants-at will, yet the court held that they could be ejected in accordance with law. He, thus, contended that by making an application under Sections 4 and 5 of the 1972 Act, the University is proceeding against them in accordance with law.

In order to appreciate the first contention of learned counsel for the petitioner, it would be appropriate to notice provisions of Section 116 of the 1882 Act, which are as follows:-

"116, Effect of holding over. - If a lessee or under lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lesser or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106."

For the application of this section, two things are necessary (i) the lessee must be in possession after expiry of the lease and (2) the lesser or his representative should accept rent or otherwise assent to the lessee''s continuing in possession on. If this principle is applied to the facts of the present case, it can safely be concluded that the petitioner is not a tenant holding over, as contended by the learned counsel for the petitioner. Nothing has been brought on record to show that the petitioner made any payment of rent after the expiry of lease of the payment was accepted by the University which could give an indication of assent to the continuance of the tenancy. Almost all the petitioners in the writ petitions had filed civil suits. In some civil suits, petitioners were held to be in un-authorised occupation and in some, they were held to be tenants-at will. They were held to be tenants-at will because the patta nama was held to be in admissible in evidence being not a registered documents. This would mean that the petitioner had come in . possession under a void lease and cannot be said to have come in possession as a lessee. His occupation would be only that of a trespasser as there is no distinction between the tenant coming in possession under a void lease on the ground of infirmity in the documents not having been registered, and the tenant coming in possession in contravention of any law. The effect is the same, i.e. tenant''s occupation is that of a trespasser right from the beginning. Otherwise to, learned counsel for the petitioner cannot seek any protection u/s 116 of the 1882 Act because Section 117 of the 1882 Act provides that none of the provisions of chapter-V shall apply to leases for agricultural purposes, except in so far as the State Government may, by notification published in the official Gazette, declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with or subject to, these of the local law, if any, for the time being in force. Chapter V contains Sections 105 to 117. Admittedly, the State Government has not issued any notification as provided u/s 117 of the 1882 Act, making any of the provisions of the Chapter applicable to such leases. Thus, the effect of Section 117 of the 1882, Act is that where the tenancy is for agricultural purpose, the provisions as to the written notice terminating the tenancy envisaged in Sections 106 or 111(g) of the 1882 Act or the principle of holding over as contained in Section 116, cannot, be made applicable, nor its principle can be applied on the terms of equity. For this, see Namdeo Lokman Lodhi Vs. Narmadabai and Others, . Thus, the contention of learned counsel for the petitioner was a tenant holding over cannot be accepted. In Balkar Singh''s case. (Supra) reliance on which was placed by counsel of the petitioner, the relationship of landlord and tenant had been established between the parties and the petitioners therein had continued to remain in possession even after the expiry of term of lease. It had also been found that the rent had been received for 10 years. In that situation, the possession of the petitioner therein was not treated as that of unauthorised occupants. Moreover, the provisions of Section 117 of the 1882 Act were also not considered. However, in the present case, firstly, there is no evidence of any lease, and secondly, there is no evidence of payment of any rent, rather tight from inception, the status of the petitioner was nothing short of a trespasser. The other contention of counsel for the petitioner that the lease was required to be determined before filing of the application under Sections 4 and 5 of the 1972 Act, is also without any substance. Before proceeding under Sections 4 and 5 of the 1972 Act, the Collector has to be satisfied as to whether the person against whom proceedings are initiated is in unauthorised occupation of any public premises. Section 3 of the 1972 Act defines as to who could be deemed to be in unauthorised occupation of any public premises. The same reads as under:-

"3. Unauthorised occupation of public premises for the purposes of this Act, a person shall be deemed to be in unauthorised occupation of any public-premises.

(a) Where he has whether before or after the commencement of this Act entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant or

(b) Where he, being an allottee, lessee or grantee, has by reasons of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein contained leased, whether before or after the commencement of this Act, to be entitled to occupy or hold such public premises; or

(c) Where any person authorised to occupy any public premises, has, whether before or after the commencement of this Act:-

(i) Sub-let in contravention of the terms of allotment, lease or grant, without the permission of the State Government of any other authority competent to permit such sub-letting the whole or any part of such public premises, or

(ii) Otherwise acted in contravention of any of the terms express or implied under which he is authorised to occupy such public premises.

Explanation - For the purpose of Clause (a), a person shall not merely by reason of the fact that he has paid any rent be deemed to have entered into possession as allottee, lease or guarantee."

The determination of lease may become necessary only if a person had come in possession as lessee as provided in Clause (b) of Section 3 of the 1972 Act. On the present case, petitioner had not come in possession as a lessee, rather he had entered into possession thereof otherwise in pursuance of any allotment lease or grant. The case of the petitioner squarely falls under Clause (a) of Section 3 of the 1972 Act, and for that matter, it was not necessary for the university to terminate the lease because there was none to be determined. The Judgment in Bir Singh''s case (Supra), relied upon by the counsel for the petitioner, has no application to the facts of the present case because in that case, order cancelling the allotment of land without hearing the petitioner therein was quashed on the ground that the petitioner was entitled to be hearing.

Faced with this situation, counsel for the petitioner, contended that for ejecting the petitioner, the remedy, if any, was to proceed under the Punjab Security of Land Tenures Act, 1953. This submission was made by the counsel on assuming the status of the petitioner as a lessee. This contention is also without any substance because even if it is taken that the petitioner was a lessee, the university was not required to proceed under the Punjab Security of Land Tenures Act because of provisions of Section 21 of the Act, which provide that "nothing contained in this Act shall affect any land held by a tenant or lessee under Government or local bodies in the State or any other un-allotted revenue land. "Thus, the provisions of the Punjab Security of Land Tenures Act cannot be made use of by the petitioners who is in occupation of the land belonging to the State Government.

For the reasons recorded above, these writ petitions are dismissed with costs. Costs assessed at Rs. 1,000/- in each writ petition.