CWP No.6652 of 2009.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.6652 of 2009 (O&M) Date of Decision: 03.08.2011 **** Dalwinder Singh & Anr. . . . . Petitioners VS. Financial Commissioner, Punjab & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Vinod Khunger, Advocate for the petitioners Ms. Sudeepti Sharma, DAG Punjab Mr. Jai Bhagwan, Advocate for respondent No.3 **** SURYA KANT J. (ORAL) (1). The petitioners seek quashing of the eviction order dated 28th November, 2003 (Annexure P5) passed by the Assistant Collector First Grade, Ferozepur which has been further upheld by the Collector, Ferozepur vide order dated 09.09.2004 (Annexure P7) as well as by the Commissioner, Ferozepur Division (vide order dated 12.08.2008 Annexure P10) and the Financial Commissioner, Punjab vide order dated 22.1.2009 (Annexure P12). CWP No.6652 of 2009.doc - 2 – (2). The eviction order has been passed against the petitioners on an application filed by the Punjab Wakf Board under Sections 40, 41, & 77 of the Punjab Tenancy Act, 1887 (in short, ‘the Act’) for their eviction from the agriculture land measuring 56 Kanal situated in village Hamad, Tehsil and District Ferozepur. (3). The admitted facts are that the suit land is owned by the Punjab Wakf Board. The petitioners took the land on lease on year-to-year basis in the year 1983-84 initially on an annual lease of Rs.2000/- which was later on enhanced from time to time. The petitioners did not pay the lease amount of Rs.11,200/- for the year 1997-98 nor for the subsequent years till the institution of the ejectment application on 13.01.2003. The Wakf Board in its eviction application alleged that petitioner No.1 had in fact taken the land on lease but a part of it was sublet by him to his brother i.e. petitioner No.2. Both of them did not pay the lease money from 1997-98 onwards and thus became unauthorized occupants. (4). The petitioners contested the ejectment application alleging that the officials of the Board are bent upon to dispossess them forcibly, hence they have got an order of injunction from the Civil Court. They maintained that CWP No.6652 of 2009.doc - 3 – the lease money was offered but the officials of the Board refused to accept the same. (5). Both the parties led oral as well as documentary evidence and consideration thereof, the AC First Grade, Ferozepur came to the conclusion that the petitioners were required to renew the lease agreement every year at an enhanced rate as per the notification issued by the Wakf Board and that the petitioners have not paid any lease amount since 1998-99 for which they are liable to be evicted from the suit land. The said finding of fact has been upheld by the Appellate as well as the Revisional Authorities. (6). The principal contention raised on behalf of the petitioners revolves around the ‘jurisdictional’ competence of the Revenue Court(s) to entertain an ejectment application in respect of the ‘Wakf property’ as according to the petitioners the ‘Tribunal’ constituted under the Wakf Act, 1995 alone is competent to adjudicate such like disputes. (7). The question regarding powers and competence of the Tribunal constituted under the Wakf Act in the matters concerning eviction of a tenant in occupation of a ‘Wakf property’ or the rights and obligation of the lessor and the lessee of such properties, does not require any longer debate for its rejection in the light of the authoritative CWP No.6652 of 2009.doc - 4 – pronouncement by the Hon’ble Supreme Court in Ramesh Gobindram (dead) through LRs vs. Sugra Humayun Mirza Wakf JT (2010) 9 SC 206. That was however a case where the Supreme Court was called upon to resolve the jurisdictional limits of the Tribunal under the Wakf Act vis-à-vis the Civil Court. Their Lordships ruled that the Civil Court has got the jurisdiction to decide such like eviction suits. (8). The Punjab Tenancy Act, 1887 is a special legislation enacted to regulate the rights and liabilities of the Tenants to whom ‘land’ has been let for ‘agricultural’ purposes or for ‘purposes subservient to agriculture’….. [Section 4(1)]. The Act confers right of occupancy on certain class of tenants, as also entitles the landlord to recover rent from the tenant (Section 12). A mechanism for enhancement of rent or ejectment of the tenant, including on the ground of ‘non-payment of rent’ has also been explicitly provided. (9). Section 40 of the Act expressly lays down the grounds of ejectment of tenant for a fixed term and it reads as follows:- “40. Grounds of ejectment of tenant for a fixed term: - A tenant no having a right of occupancy but holding for a fixed term under a contract or a decree CWP No.6652 of 2009.doc - 5 – or order of competent authority, shall be liable to be ejected from his tenancy at the expiration of that term, and, on any of the following grounds, before the expiration thereof namely: (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 situated; (c) on any ground which would justify ejectment under the contract decree or order.” (10). Section 41 of the Act holds a tenant, from year to year basis, liable to ejectment at the end of the agricultural year and it says that:- 41. Restriction of ejectment – A tenant who has not a right of occupancy and does not hold for a fixed term under a contract or a decree or order of competent authority, may be ejected at the end of any agricultural year. CWP No.6652 of 2009.doc - 6 – (11). Section 75 of the Act defines “Revenue Officers” and their jurisdiction. Section 76 of the Act describes the nature of applications and proceedings cognizable by Revenue Officers. Similarly, Section 77 of the Act defines “Revenue Courts” and the nature of suits cognizable by them. The relevant part of Section 77 reads as follows:- “77. Revenue Courts and Suit cognizable by them.- (l) When a Revenue Officer is exercising jurisdiction with respect to any such suit as is described in sub-section (3), or with respect to an appeal or other proceeding arising out of any such suit, he shall be called a Revenue Court. (2) There shall be the same classes of Revenue Courts as of Revenue officers under this Act, and, in the absence of any order of the (Subs. For the words “Provincial” by the Adaptation of Laws Order, 1950) [State] Government to the contrary, a Revenue- officer of any class having jurisdiction within any local limits under this Act shall be a Revenue Court of the same class having jurisdiction within the same local limits. Procedure where Revenue matter is raised in a Civil Court..— (3) The following units shall be instituted in, and heard and determined by Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted:- CWP No.6652 of 2009.doc - 7 – [Provided that- (added – by Punjab Act 3 of 1912 Section 2) (1) where in a suit cognizable by and instituted in a Civil Court it becomes necessary to decide any matter which can under this sub section be heard and determined only by a Revenue Court the Civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order VII rule 10, Civil Procedure Code (V of 1908), and return the plaint for presentation to the Collector ; (2) On the plaint being presented to the Collector, the Collector shall proceed to hear and determine the suit where the value thereof exceeds Rs. 1,000 or the matter involved is of the nature mentioned in section 77(3). First Group, of the Punjab Tenancy Act, 1887 (XVI of 1837), and in other cases may send the suit to an Assistant Collector of the first grade for decision.] FIRST GROUP (a) suits between landlord and tenant for enhancement or reduction of rent under section 24 ; (b) suits between landlord and tenant for addition to or abatement of rent under section 28 or for commutation or rent ; (c) suits under section 34 for the determination of rent or other sum on the expiration of the . term of an assessment of land-revenue [and suits relating to the rent to be paid under a mortgage made in accordance with form (c) as prescribed by section 6 of the (Added CWP No.6652 of 2009.doc - 8 – by Punjab Alienation of Land Act, 13 of 1900, S.22) Punjab Alienation of Land Act, 1900 (XVI of 1900) ] : SECOND GROUP (d) suit by a tenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has not such a right; (e) suits by a landlord to eject a tenant ; (f) suits by a tenant under section 45 to contest liability to ejectment when notice of ejectment has been served ; (g) suits by a tenant under section 50 for recovery of possession or occupancy, or for compensation or for both ; (h) suits by a Landlord to set aside a transfer made of a right of occupancy, or to dispossess a person to whom such a transfer has been made or for both purposes ; (i) any other suit between landlord and tenant arising out of the lease or condition on which a tenancy is held ; (j) suit for sums payable on account of village cesses or village expenses ; (k) suits by a co-sharer in an estate or holding for a share of the profits thereof or for a settlement of accounts ; (l) suits for the recovery of over-payments of rent or land-revenue or of any other demand for which a suit lies in a Revenue Court under this sub-section; (m) suits relating to the emoluments of Kanungo, Zaildars, Inamdars or village Officers ; THIRD GROUP CWP No.6652 of 2009.doc - 9 – (n) suits by a landlord for arrears of rent or the money-equivalent of rent, or for sums recoverable under section 14; [or suits for the recovery of such arrears or sums by any others person to whom a right to recover the same has been sold or otherwise transferred,] (Added by the Punjab Alienation of Land Act 13 of 1900. S.22) (o) suit by a landowner to recover moneys claimed as due for the enjoyment of rights in or over land or in water, including rights of irrigation, rights over fisheries, rights of pasturage and forest-rights ; (p) suits for sums payable on account of land- revenue or of any other demand recoverable as an arrear of land-revenue under any enactment for the time being in force, and by a superior landowner for other sums due to him as such. (Emphasis applied) xxxx xxxx xxxx xxxx (12). It would thus be seen that Section 77(3)(2)(e) & (3)(n), in no uncertain terms enables a landlord to seek ejectment of his tenant before the Revenue Court only and jurisdiction of the Civil Court in such like matters has been expressly barred. (13). The land taken by the petitioners on yearly lease from the Wakf Board is admittedly agricultural land and squarely falls within Section 4(1) of the Act. The Wakf Board was therefore competent to seek eviction of its tenant for non-payment of rent under Section 40 & 41 of CWP No.6652 of 2009.doc - 10 – the Act. If one reads the decision in Ramesh Gobindram’s case (supra) along with the provisions of the 1887 Act, there can indeed be no escape but to hold that the ejectment application for non-payment of rent in respect of an agriculture land even if it is a ‘Wakf property’, is maintainable before a Revenue Court under the Act and not before the Tribunal constituted under the Wakf Act, 1995 as the jurisdiction of the Tribunal stands excluded in relation to the properties/lands which fall within the ambit of Section 4(1) read with Section 77 of the Act. (14). For the reasons afore-stated, I do not find any ground to interfere with the impugned orders. The writ petition is accordingly dismissed. No costs. (15). Dasti . 03.08.2011 vishal shonkar (S u r y a K a n t) Judge