Punjab-Haryana High Court
Charan Singh vs Municipal Committee, Rania And Others on 28 February, 1996
Equivalent citations: AIR1996P&H207, (1996)113PLR707
Author: R. L. Anand
Bench: R.P. Sethi, R.L. Anand
ORDER R. L. Anand, J.
1. Vide this judgment we dispose of two Letters Patent Appeals Nos. 489 of 1995 (Charan Singh v. Municipal Committee, Rania) and 490 of 1995 (Pritam Singh v. Municipal Committee, Rania), as both the appeals have arisen from one judgment dated 29th March, 1995 delivered by the learned single Judge by which he disposed of Civil Writ Petns/Nos. 1677 and 1678 of 1987.
2. The Municipal Committee, Rania, Tehsil and District Sirsa (hereinafter called 'the Municipal Committee') and the respondents of these two L.P.Ss. filed petition for eviction of the appellants from the land measuring 82 Kanals 6 Marias comprised in Rectangle No. 110, KillaNos. 3, 4, 6, 7, 8, 11, 12, 13, 14 and 15 situated in village Rania, Tehsil and District Sirsa, and for recovery of damages for the use and occupation of the aforesaid land with effect from 1-4-1978 till the date of the filing of the petition at the rate of Rs. 1375/- per acre under the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (for short 'the 1972 Act') alleging that the appellants were in unauthorised possession of the land in dispute and that they had retained it by unlawful means since 1-4-1978. Prior to this the appellants got this land on Chakota (Rent) which expired on 31-3-1978. After the expiry of the period, they ought to have delivered the possession of the land to the Municipal Committee, but they failed to do so. The possession of the appellants is unauthorised and they are liable to pay compensation for the use and occupation of the land at the rate of Rs. 1375/- per acre. This application was resisted by the appellants on the main plea that the petition under Sections 5/7 of the 1972 Act was not maintainable and that they are cultivating the land as tenants Gair Maurusi since long and that the Municipal Committee has no right, title or interest in the said land. The Collector Sirsa by declining the defence of the appellants passed the ejectment order dated 26-9- 1983 by holding that the appellants took this land on Chakota (Rent) for 1977-78 only and after the expiry of the said period, their possession has clearly become unlawful and they are liable to be ejected.
3. Aggrieved by the order of the Collector, the appellants filed appeal before the Commissioner (Appeals), Hissar Division, who vide order dated 29-1-1987 affirmed the findings of the learned Collector and dismissed the appeal. Once again it was held by the Commissioner that this land was taken on Chakota from the Municipal Committee, Rania, and not from the Central Government, as pleaded by the appellants before the Commissioner. The appellants were not satisfied with the orders passed by the Collector as well as the Commissioner. They filed two Civil Writ Pctns. Nos. 1677 and 1678 of 1987 in this Court, which were disposed of vide judgment dated 29-3-1995 passed by the learned single Judge. The appellants averred in their writ petitions that 660 shares out of 793 shares vested in the Central Government, while the remaining 133 shares vested in the Gram Panchayat, Rania. Mutations in this regard were duly sanctioned. On the basis of these mutations it was pleaded by the appellants in the writ petitions that the findings recorded by the authorities under the 1972 Act could not be sustained, Also it was pleaded that the appellants were in cultivating possession of the land as tenants Gair Maurusi on payment of annual rent at the rate of Rs, 80/- per acre under the Central Government and it cannot be said that their possession is unlawful. On these premises the appellants challenged the orders of the Collector as well as the Commissioner with the prayer for their quashment.
4. The petitions under Article 226 of the Constitution of India were contested by the respondents and it was, inter alia, pleaded that mutation dated 3-1-1984, which had been sanctioned in respect of 660/793 shares in favour of the Custodian, had been quashed by this Court in Civil Writ Petition No. 532 of 1985 on 27-8-1985. As a result of that Gram Panchayat, Rania, was declared to be the owner of the whole of the land. It was further averred by the respondents that the petitioners (now appellants) were in unauthorised occupation of the land. The land in dispute was given to the appellants by the Gram Panchayat for a period of one year, which expired on 31-3-1978. It was also pleaded by the respondents that the appellants filed a suit for permanent injunction, praying that the defendant-Municipal Committee be restrained from interfering with the possession of the appellants in respect of the land measuring 82 Kannals 6 Marias and in that suit it was never pleaded by the appellants that the suit land was exclusively owned by the Gram Panchayat and that it was let out in Kharif 1975. In the meanwhile the Custodian became the owner of 660/793 share of the suit land and the Gram Panchayat was left with only 133/793 share. The share of the Gram Panchayat alone was transferred in favour of the Municipal Committee vide mutation dated 3-4-1979. The said suit of the appellants was dismissed in default by the Trial Court on 2-2-1984. With the dismissal of the suit the appellants are estopped from contending that the Municipal Committee was not the owner of the land in dispute or that they had not accepted the lease of the land for one year from the Gram Panchayat. The respondents pleaded further that the land measuring 46 Kanals 8 Marias was auctioned in favour of Pritam Singh appellant belonging to the Harijan community for a period of one year from 15-4-1977 to 15-4-1978 at the rate of Rs. 1375/- per acre. In order to clarify the position with regard to ownership, the respondents, inter alia, pleaded that by notification dated 21-3-1974 whole of village Rania, which was having a Gram Panchayat, was constituted into a Notified-Area Committee under the Haryana Municipal Act, 1973, vide notification Annexure R/A-5. On the constitution of the Notified Area Committee; the Shamilat Deh land, which had earlier vested in the Gram Panchayat, came to vest in the Notified Area Committee. Some litigation ensued between the Gram Panchayat and the Notified Area Committee. On 1-10-1978 the Gram Panchayat passed a resolution for handing over the immovable property to the Notified Area Committee, Rania (for short 'the Committee'). The respondents also pleaded that initially in the Jamabandi for the year 1972-73 the Gram Panchayat was shown to be the owner. In pursuance of the decision of this Court in C.W.P. No. 2401 of 1968 decided on 15-5-1973 it was held that the evacuee interest of the Muslims on their migration to Pakistan vested in the Custodian and the land in dispute could not become part of the Shamilat Deh in the village. As a result of that 660/793 share was transferred in favour of the Central Government. This decision was reversed by the Apex Court in the case Gram Panchayat, Jamalpur v. Malwinder Singh, AIR 1985 SC 1394. As a result of that whole land vested in the Gram Panchayat, Rania, and vide notification dated 21-3-1974 the Government of Haryana declared that the local area of village Rania shall be considered to be within the municipal limits. As a result of that the land in dispute came in the ownership of the Notified Area Committee constituted under the Haryana Municipal Act, 1973. Vide notification dated 16-9-1987 statuts quo ante was restored and the Gram Panchayat was again constituted. However, vide notification dated 28-9-1992 the Gram Panchayat of village Rania was again abolished and the area came under the ownership of the Municipal Committee, Rania. While tracing out the history of the land regarding its ownership, the respondent-Municipal Committee pleaded that originally the land vested in the Gram Panchayat but later on it vested in the Municipal Committee which was entitled to evict the appellants from the land in dispute. Finally it was pleaded that vide mutation No. 13166 the entire land has been entered in the name of the Municipal Committee, Rania, in place of the Gram Panchayat. The Gram Panchayat at one point of time in the writ petitions filed application under Order 1, Rule 10, C.P.C. for implead-ing it as a respondent. The prayer was granted and separate written statement was filed by it claiming itself the owner of the property, but later on nobody appeared before the learned single Judge on behalf of the Gram Panchayat in order to support its allegations made in the written statement.
5. After perusing the record and the documents placed before this Court in the Civil Writ Petition Nos. 1677 and 1678 of 1987, the learned single Judge came to the conclusion that both the petitions were devoid of any merit holding that the appellants were in unauthorised possession of the disputed land, subject-matter of the ejectment petition and on the premises of equity also, the appellants were not entitled to invoke discretionary jurisdiction under Article 226 of the. Constitution of India. Aggrieved by the judgment dated 29th March, 1995, the present two appeals have been filed.
6. We have heard Shri A. K. Chppra, Advocate, on behalf of the appellants, and Shri R. S. Mittal, Senior Advocate, on behalf of the Municipal Committee, and with their assistance have gone through the record of this case.
7. Assailing the findings of the learned single Judge it was a argued in the first instance by the learned counsel appearing on behalf of the appellants that the land in dispute never vested in a legal manner in the Gram Panchayat, Rania, and thereafter in the Municipal Committee. It is in the ownership of the Central Government (Custodian) and the respondent-Municipal Committee had no locus standi to file the ejectment petition. The argument raised by the learned counsel for the appellants has been strongly refuted by the learned counsel appearing for the Municipal Committee and rightly too when he urged that the learned single Judge has ably traced out the ownership of the land in dispute in favour of the Municipal Committee and moreover this land was taken on Chakota (Rent) by the appellanls from the Municipality Rania itself and now the appellants could not be permitted to deny the title of the Municipal Committee itself.
8. We find sufficient force in the argument raised by the learned counsel appearing for the respondent-Municipal Committee. We have said in the earlier portion of this judgment that at one point of time in the revenue record the land in dispute was shown to be the property of the Custodian, but later on the property passed over to the Gram Panchayat and thereafter vide notification dated 28-9-1992 with the abolition of the Gram Panchayat of village Rania, the area in dispute came under the ownership of the Municipal Committee. Rania. Once the property has been given on Theka for the purpose of cultivation by the Municipal Committee describing itself to be the owner/ landlord of the land in dispute and the appellants have accepted this relationship, it is not open for them to deny the title/ ownership/relationship of lessor and lessee vis-a-vis the Municipal Committee.
9. The first point for determination would be whether the respondents had the locus standi to file the petition under Section 5 of the 1972 Act or not. For this purpose it will be useful for us to incorporate the definitions of various clauses and for our advantage we would like to incorporate the definitions of "premises" and "public premises" given in Section 2(d) and Section 2(e) of the 1972 Act, respectively, and which are as under :--
"(d) "premises" means any land, whether used for agricultural or non-agricultural purposes, or any building or part of a building and includes :--
(i) the garden, grounds and out-house, if any, appertaining to such building; or part of a building; and
(ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;"
"(e) "Public premises" means premises belonging to, or taken on lease or requisitioned by, or on behalf of, the State Government or 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 Soldiers, Sailors and Airmen's Board or any University established by law or any Corporation or Board owned or controlled by the State Government."
Section 3 of the said Act defines who would be treated in unauthorised occupation of the public premises. Section 3 of the 1972 Act is in the following terms :--
"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 reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein contained, ceased, 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 or of any other authority competent to permit such subletting, 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, lessee or grantee."
A combined reading of the above provisions of law would show that when an allottee, lessee or grantee has by reasons of determination or cancellation of his allotment, lease or grant accordance with the terms in the behalf therein contained, ceases, such person shall be deemed to be in unauthorised occupation of the public premises.
10. Learned counsel appearing on behalf of the appellants submitted that in order to hold that the appellants where in unauthorised occupation of the premises, it was obligatory on the part of the respondents to establish that before filing the ejectment petition before the Collector the lease of the appellants was determined. Since it has not been done, therefore, the possession of the appellants was not unauthorised and as such the petition for eviction was not maintainable and that the Municipal Committee, Rania, had no locus standi to file the petition. The argument, in our considered view, is devoid of any merit, in view of clause (g) of Section 111 of the Transfer of Property Act, which lays down how a lease of immovable property can be determined. As per clause (g) of Section 111 a lease of immovable property would stand determined by forfeiture when a lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. The moment the appellants filed an earlier suit against the Municipal Committee propounding a title adverse to the Committee and when they pleaded that the ownership of the land vested in the Custodian, it tanta-mounts to the determination of the lease, which was for a limited period at the first instance, Admittedly the lease was for one year, which was expired on 15-4-1978 and it stood determined by the efflux of the time making the possession of the appellants unauthorised after 15-4-1978, giving a locus standi to the respondent-Municipal Committee to file the petition under Section 5 read with Section 7 of the 1972 Act.
11. Now it is to be seen what is the effect when a lessee, who entered upon the land in a legal manner and after the efflux of time of his tenancy, continues paying the rent. Whether in such circumstances the possession of such person can be held to be unauthorised or not.
12. Learned counsel for the appellants took the support of Section 116 of the Transfer of Property Act and submitted that the appellants had been paying the rent even after the specified date and the possession of the appellants was not continuous. Therefore, the lease continued and stood renewed from year to year as the land in dispute was let out for agricultural purposes. In ether words, it was submitted that a tenant holding over cannot be construed as a person in unauthorised possession of the land. For the sake of convenience we are reproducing the provisions of Section 116 of the Transfer of Property Act, which are as under :--
"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 lesseee, and the lessor 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."
A reading of the above provision would show that the principle underlying this section is based upon considerations of enquiry and justice and a tenant can be regarded as holding over if it is shown that after the determination of the lease the lessor or his legal representative accepted the rent from the lessee or otherwise assented to his continuing in possession.
13. Mr. A. K. Chopra drew our attention to the various bank challans filed in the writ petitions and wanted to draw a conclusion that since the appellants had been depositing the rent in the Bank after 15-4-1978 and there was no objection to the said deposits either by the Custodian or by the Municipal Committee, therefore, it should be taken by way of implications that the lease continued for those years when the amount was deposited and these deposits continued upto the year 1987. In our opinion, the appellants cannot take the benefit of Section 116 of the Transfer of Property Act because the element of consent whether express or implied, which is most important, is totally missing on the part of the Municipal Committee. At no point of time the Municipal Committee gave the consent to the appellants for the deposits of the rent nor it was so deposited in the account of the Committee. If an individual chooses to adopt a remedy at the back, of the real owner/landlord by depositing the rent unilaterally styling himself as a tenant under a particular person, how the relationship of tenant holding over can be created, much less between a Municipal Committee and a private individual. There is no resolution passed by the Committee nor its employees wrote any letter, what so ever, to the appellants to the deposits of such rent. The things to our mind are very simple and clear. The initial lease was for a year which expired with effect from 15-4-1978. At no point of time that lease was renewed. With the efflux of time the possession of the appellants became unauthorised and the Committee became the owner of the property. The land in dispute fell within the definition of 'public premises'. The unilateral acts of the appellants could not create a fresh tenancy in their favour, which could only be created according to the general principles of the Transfer of Property Act as applicable to the State of Haryana. In the light of the above discussion, we again repel the argument of the appellants that their possession has become lawful by virtue of the principle of holding over.
14. It was the prime argument of the learned counsel for the appellants that the Central Government was the paramount holder of this land and the appellant had been paying the Chakota to the Central Government and thereafter to the Notified Area Committee considering them to be the owners of the property. Even in the Jamabandis for the years 1982-83 (Annexure P3/T), and 1987-88 (Annexure P4/T) the ownership of the land in dispute has been recorded in the name of the Notified Area Committee, Central Government. The word Chakota (rent) used in these Jamabandis at the rate of Rs. 1375/- per acre shows that the appellants were in possession of this land as a tenant and by no stretch of imagination their possession can be termed as unlawful. In order to appreciate this argument of the learned counsel for the appellants, we will have to work out if the Central Government or the Gram Panchayat, Rania, was the paramount holder vis-a-vis the Municipal Committee or not. At no point of time the Gram Panchayat or the Committee ever accepted the Central Government as the owner of the land in dispute. It was always the stand of the Gram Panchayat that the land vested in it. The Gram Panchayat always pleaded an independent title to the Central Government, There was no immediate threat of eviction to the appellants with the filing of the ejectment petition. Never it was pleaded by the appellants before the Collector or before the Commissioner that there was any paramount title holder of the land in dispute; Only a vague denial was made that the Committee has no concern with the land in dispute. For the first time the appellants became wiser when they filed the suit in the Civil Court, which too was dismissed. Even if it is assumed for the sake of argument that the land in dispute was the ownership of the Central Government at one point of time, the established fact is that the appellants acknowledged the Committee as their landlord and paid rent in the capacity of a tenant. This act was enough to create a relationship of landlord and tenant and it was not open to the tenant to contend that the lessor's title was defective. There also did not exist any ground or apprehension in the mind of the appellants to attorn the alleged paramount title holder under any threat of eviction from the land in their possession.
15. Learned counsel for the appellants relied on the Division Bench authority of this Court reported as Balkar Singh v. Commis-sioner Jullundur Division, Jullundur, 1989 Pun LJ 101, and submitted that when a tenancy is created for a fixed period, the relationship of landlord and tenant stands established and the possession of the tenant cannot be said to be unauthorised from inception. When a tenant is allowed to continue to remain in possession even after the expiry of contractual period of tenancy and this fact is recorded in the revenue record, the possession of such person by virtue of the provisions of Section 116 of the Transfer of Property Act becomes that of a tenant holding over. Till this tenancy is not determined according to the provisions of Section 106 of the Transfer of Property Act, the possession cannot be treated as unauthorised and as such the provisions of the 1972 Act are not applicable. There is no quarrel about the legal proposition laid down in this authority, but the facts in hand are distinguishable. Here in the present case the appellants acted in a manner by denying the ownership and title of the respondents not only in the ejectment proceedings but also by filing a suit. The right if any stood determined in their favour and immediately with the denial of title of the respondent-Municipal Committee, the possession of the appellants became unauthorised in terms of Section 3 of the 1972 Act.
16. On the contrary, learned counsel appearing on behalf of the respondents, drew our attention to the case law reported as Kartar Singh v. State of Haryana, 1977 Pun LJ 71, in which it was held that the possession of a lessee after the expiry of the period of lease becomes unauthorised and he is liable to be evicted under the 1972 Act. The counsel has also drawn our attention to the ruling reported as Dr. K. R. K. Talwar v. Union of India, AIR 1977 Delhi 189, wherein their Lordships of the Delhi High Court held (Para 6) :--
"Where the lease of a tenant is terminated or the allotment is cancelled the authority under which he was allowed to occupy disappears and he becomes a person in "unauthorised occupation" of the premises."
17. Yet another attempt was made by the learned counsel for the appellants that in the revenue record it has been mentioned that the appellants had been paying/depositing "rent" with respect to the land in dispute even after 1978. Their possession may be considered as that of a tenant holding over as lawful. We have already stated above that in order to create a relationship of lessor or lessee or that of a tenant holding over, a meeting of minds is required or in the alternative there must be assent written or implied on behalf of the owner allowing the tenant to continue over the property in question. By using the word "rent" or mere "deposit of rent" will not create a fresh relationship of lessor. The challan through which the appellants had been depositing the money by describing it as rent is not the conclusive proof to show that relationship of landlord and tenant was ever created between the parties after 15-4-1978. In this regard we are fortified by an authority of the Hon'ble Supreme Court reported as Dr. H. S. Rikhy v. The New Delhi Municipal Committee, AIR 1962 SC 554, wherein it was held that the use of the word "rent" in receipts issued by a Municipality to the occupiers of the shops in the market constructed by it is conclusive of the matter that relationship of landlord and tenant is created between the Municipality and the said occupiers. The word "rent" may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him. It may also be used in the generic sense, without importing the legal significance aforesaid of compensation for use and occupation. "Rent" in the legal sense can only be reserved on the demise of immovable property. Hence, the use of the term 'rent' cannot preclude the landlord from pleading that there is no relationship of landlord and tenant: The question must, therefore, depend upon whether or not there is a relationship of landlord and tenant in the sense that there is a transfer of interest by the landlord in favour of the tenant. In the present case at no point of time the Committee ever gives inclination even remotely that it intended to create new relationship of lessor or lessee between it and the appellants.
18. Lastly, it was urged before us by the learned counsel for the appellants that the learned single Judge was not justified in allowing the respondents to place on record the additional affidavit and by doing so the learned single Judge has exceeded his jurisdiction in the proceedings under Article 226 of the Constitution of India. This contention, in our opinion, is again devoid of any merit. For the advancement of justice between the parties there is no restriction upon a Court either under Article 226 of the Constitution of India or under the general law. Even the Civil Procedure Code permits that Court can call upon the parties to furnish better particulars.
19. We have viewed this appeal from every angle of vision and have come to this conclusion that these appeals are devoid of any merit. The same are hereby dismissed. No costs.
20. Before parting with this judgment we may mention that vide order dated 1-6-1995 passed in Civil Misc. Nos. 2004 and 2005 of 1995 this Court stayed dispossession of the appellants subject to the deposit of Rupees 40,000/- each in both the L.P.As. This amount would be adjusted by the respondents against the amount which may be calculated for the use and occupation of the land by the appellants.
21. Appeals dismissed.