In CWP-9108-2015 (O&M)-PUNJ HC- P&H HC sets aside termination of tenancy of petitioners by Haryana Agriculture University via notice u/s 106 of Transfer of Property Act, 1882
Justice Sudhir Mittal [21-09-2022]

Read Order: Paramjit and Another v. Commissioner, Hisar Division Hisar and Others

Monika Rahar

Chandigarh, September 21, 2022:  While setting aside eviction of petitioner by proceedings under the Haryana Public Premises and Land (Eviction & Rent Recovery) Act, 1972 (the Act), Punjab and Haryana High has termed a 2001 notice issued by the Haryana Agriculture University (HAU) under Section 106 of the Transfer of Property Act, 1882 (TP Act) terminating the tenancy of the petitioners, as “sustainable in law” on the ground that during this time Section 106 of the TP Act was not made applicable to the state of Haryana. 

The Bench of Justice Sudhir Mittal held, “Section 117 of the said Act exempts leases for agricultural purpose from the provisions of the Chapter i.e. Chapter-V, except insofar as the State Government may by notification declare. The State of Punjab of which Haryana formed a part at the relevant time issued a Notification dated 26.03.1955 published in the Punjab Government Gazette dated 01.04.1955 that provisions of Sections 54, 107 and 123 of the TP Act had been extended to the entire State w.e.f. 01.04.1955. It is thus, apparent that Section 106 of the Act was not made applicable and notice issued thereunder was no notice in the eyes of law. Resultantly, it can be safely held that notice dated 27.09.2001 did not result in termination of the status of tenant at will of the petitioners.”

Shish Ram, the predecessor-in-interest of the petitioner, was in possession of certain land owned by the provincial Government as ‘gair marusi’ even before Independence. In 1977, for experimental purposes, the Government of Haryana executed a lease deed in respect of the same land in his favour for a period of one year. 

The Department of Agriculture was devising ways and means of increasing the yield of the land and cultivation was to be done strictly under the guidance of the department. Subsequently, in 1988, the Government of Haryana leased a large chunk of land in favour of the HAU for a period of 99 years which included the disputed land. Later, HAU initiated proceedings for eviction of Des Raj son of Shish Ram under the Act which resulted in the passing of the 1991 eviction order. 

Thus, tenants filed appeals which were successful, prompting HAU to file a writ petition which was allowed. In the meanwhile, Des Raj filed a civil suit seeking a declaration that he was a tenant on the land in dispute on payment of 1/3rd batai and could not be dis-possessed forcibly. The suit was decreed in his favour. An appeal against this decree was preferred but the same was dismissed. 

Prior to this, the allowing of the writ petition filed by the HAU was also challenged and the same was allowed with the observation that the petitioner therein and other similarly situated persons possessed the status of ‘tenant at will’ by virtue of Civil Court decree and thus, the liberty was granted to the HAU to terminate the tenancy in accordance with law and then to initiate fresh proceedings. Also, the Regular Second Appeal filed against the judgement and decree was dismissed and the finding of ‘tenancy at will’ has become final.

Then in 2001, the HAU issued a notice under Section 106 of the TP Act terminating the tenancy and filed a fresh petition for eviction under the Act. In view of this notice, eviction was ordered by the Collector. The Government of Haryana transferred the lease in favour of Chaudhary Devi Lal University, Sirsa (third respondent). The petitioner and other similarly situated tenants challenged the order of eviction by way of appeal which was allowed. 

This order was challenged by the third respondent via a writ which was allowed because the tenant consented to the matter being remitted to the Collector for a fresh decision. The Collector against ordered eviction holding that the tenancy was for one year only and had thus, come to an end long back. He also relied upon notice issued under the TP Act. The appeal filed by the petitioner was dismissed while holding that the petition under the Act was maintainable as property owned by the University was covered under the definition of ‘public premises’ given in the Act and that the petitioner was not a tenant holding over. Thus, the present writ petition was filed.

First and foremost, the issue regarding transfer in favour of the third respondent was taken up for consideration. In this respect, the Court observed that in the order passed in the Writ Petition filed by the third respondent, the tenants consented to the matter being remitted to the Collector, Sirsa for a fresh decision, in accordance with law and with no objection, whatsoever, was raised regarding the title of the University. That was the first opportunity available to the petitioners to raise an objection regarding title, the Bench added while also observing that a legal right can always be waived and no objection having been raised by the petitioners at the time of this decision, a waiver can be inferred by conduct. 

“Thus, the petitioners are estopped from raising such an objection in this writ petition or even, on the grounds of appeal filed before the Commissioner, Hisar Division”, held the Court. 

It was the argument of the Counsel for the petitioners that the TP Act is not applicable in Haryana and on this ground also, the notice under Section 106 of the TP Act was no notice in the eyes of law. 

On this argument regarding the applicability of the TP Act in the State of Haryana, the Court made reference to Section 117 of the said Act which exempts leases for agricultural purposes from the provisions of the Chapter i.e. Chapter-V, except insofar as the State Government may by notification declare. 

Further, the Court observed that the State of Punjab of which Haryana formed a part, issued a Notification on March 26, 1955, published in the Punjab Government Gazette on April 01, 1955, providing that provisions of Sections 54, 107 and 123 of the TP Act had been extended to the entire State w.e.f. April 1, 1955. 

Thus, the Court held, 

“It is thus, apparent that Section 106 of the Act was not made applicable and notice issued thereunder was no notice in the eyes of law. Resultantly, it can be safely held that notice dated 27.09.2001 did not result in termination of the status of tenant at will of the petitioners. That being so, the land in dispute did not vest in the University and could not be said to be covered by definition of ‘public premises’ within the meaning of the Act.”

Further, the Court also held, 

“Section 3 (b) of the Act provides that a person would be deemed to be in unauthorised occupation of a premises when the allotment, lease or grant in his favour had been determined or cancelled. Rights under the lease having not been determined, the proceedings under the Act have to be held to be without jurisdiction.”

Eventually, the Court allowed the writ petitions and the impugned orders of eviction were set aside.