IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.6441 of 1986 (O&M) Date of decision:02.11.2011 Joginder Singh son of Dhayan Singh, and others. ...Petitioners versus Financial Commissioner, Haryana, Civil Secretariat, Haryana, Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Pankaj Mulwani, Advocate, for the petitioners. Mr. O.P. Sharma, Additional Advocate General, Haryana, for respondents 1 to 3. Mr. Amarjit Markan, Advocate, for the respondent No.4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The point involved in the writ petition is seeming conflict of the provisions contained under Section 42 of the Punjab Tenancy Act of 1887 and Section 7 of the Pepsu Tenancy and Agricultural Lands Act of 1955. In an action for eviction by the landlord under Section 42 of the Punjab Tenancy Act, the contention was that the tenant had not paid rent in spite of the decree passed Civil Writ Petition No.6441 of 1986 (O&M) - 2 - against him for more than 1 ½ years which entitled a landlord to secure eviction in terms of Sections 42, 43 and 44. The provisions under Sections 42 and 44 are reproduced to consider the scope of the conflict. “42. Restriction on ejectment – A tenant shall not be ejected otherwise than in execution of a decree for ejectment, except in the following cases, namely :- (a) when a decree for an arrear of rent in respect of his tenancy has been passed against him and remains unsatisfied; (b) when a tenant 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. 44. Ejectment for failure to satisfy decree for arrear of rent- (1) On receiving the application in any such case as is mentioned in clause (a) of section 42, the Revenue-officer shall, after such inquiry with respect to the existence of the arrear as he deems necessary, cause a notice to be served on the tenant stating the date of the decree and the amount due there under, and informing his that if he does not pay that amount to the Revenue- officer within fifteen days from receipt of the notice he will be ejected from the land. Civil Writ Petition No.6441 of 1986 (O&M) - 3 - (2) If the amount is not so paid the Revenue-officer shall, subject to the provisions of this Act with respect to the payment of compensation, order the ejectment of the tenant unless good cause is shown to the contrary.” 2. The order of eviction was passed on 31.05.1983 but the tenant admittedly paid the rent on 20.06.1983 and claimed in appeal to the Commissioner that since he had paid rent within a period of 6 months from the date of order of ejectment, he was entitled to be protected by virtue of the provisions contained under Section 7(1)(b) of the Pepsu Tenancy and Agricultural Lands Act of 1955. The relevant provision under Section 7(1)(b) reads as follows:- “7. Termination of tenancy:- (1) No tenancy shall be terminated except in accordance with the provisions of this Act or except on any of the following grounds, namely:- (a) ..... (b) that the tenant has failed to pay rent within a period of six months after it falls due: Provided that no tenant shall be ejected under this clause unless he has been afforded an opportunity to pay the arrears of rent within a further period of six months from the date of the decree or order directing his ejectment and he has failed to pay such arrears during that period.” Civil Writ Petition No.6441 of 1986 (O&M) - 4 - 3. The Commissioner accepted this contention but the Financial Commissioner set aside the direction allowing the tenant to continue and held that the provisions of the Punjab Tenancy Act operates in a distinct field and when the petition had been filed for eviction under Section 44, the tenant cannot secure to himself a further period of 6 months as contemplated under the Pepsu Act. The Financial Commissioner reasoned that, (i) 1 ½ years had passed since the passing of the decree and a ground for ejectment under the Punjab Tenancy Act had, therefore, been made out; (ii) the contention raised before the Commissioner was not urged before the Collector and, therefore, there was not even an issue framed to that effect; and (iii) the order of ejectment itself had been passed under the Act and there is no question of invoking the Pepsu Law in such a case. 4. I would hold this interpretation to be erroneous and is capable of making immense mischief to the benefit which the Pepsu Law confers on a tenant. The Punjab Tenancy Law of 1887 cannot be taken to be the only repository of tenant's rights. The Pepsu Law of the year 1955 purports to “amend and consolidate law relating of agricultural lands and to provide for certain measures of land reforms.”. Section 1 makes the applicability of this law to all tenants except as regards the provisions under Section 7-A, Chapter 4, 4-A and 4-B to be extended from 6th March, 1955. Consequently, in so far as the properties are situate within the area to which the Civil Writ Petition No.6441 of 1986 (O&M) - 5 - Pepsu Law was applicable, a tenant is certainly entitled to rely on a benefit which the Section provides to him. 5. Admittedly, the tenancy and the period of lease is subsequent to the commencement of the Act and if the tenant had paid rent within a period of 6 months from the date of order of eviction, that ought to avail to a tenant to secure the protection. The language of Section 7(1)(b) with its proviso makes it clear that the law contemplates “a further period” of 6 months. It cannot be that an Act framed in the year 1887 could eclipse the provisions of Section 7 of Pepsu Law. It is quite to the contrary, in so far as the Pepsu Law declares that it is an act to amend and consolidate the law relating to tenancy, Section 7 must be read as providing to a tenant an additional period of what the Punjab Tenancy Act provides. It will be wrong to assume that a landlord could decide to exclude the provisions of Pepsu Tenancy Law by applying under the Punjab Tenancy Act. The application of Acts cannot be made to be dependent on the personal whims of a landlord. Again, the point urged on behalf of the landlord that a tenant had not pleaded for an additional period cannot be taken as an argument at all, for, there can be no waiver of a right with statute confers a tenant with and more especially, in a tenant welfare legislation such as, the Pepsu Law of 1955. Even if the tenant had not pleaded for such a right before the Collector, when he tendered the rent within a period of 6 months from the order of eviction, that itself ought to have been Civil Writ Petition No.6441 of 1986 (O&M) - 6 - taken as sufficient compliance of what the law required. 6. The order of the Financial Commissioner is set aside and the writ petition is allowed. (K. KANNAN) JUDGE 02.11.2011 sanjeev