Allowed

Punjab Wakf Board, Ambala Cantt v. Jai Ram

Punjab & Haryana HC25 Feb 2012RSA/952/1992

Case brief

AI extract

What is this about?

This bench allowed the appeals and restored the trial court decree. The court held that a notice terminating tenancy forthwith but allowing 15 days to vacate is valid. The decision rests on equitable principles applicable to Wakf property where the Transfer of Property Act does not strictly apply.

What did the court decide?

The appeals are allowed. The judgment and decree of the trial Court are restored with no order as to costs.

Punjab Wakf Board, Ambala Cantt Vs Jai Ram — Property and Title | Punjab & Haryana HC (2012)

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RSA No. 952 & 953 of 1992

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Date of decision: 25.2.2012

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RSA No. 952 of 1992

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(i) Punjab Wakf Board …..Appellant Vs. Jai Ram .........Respondent

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RSA No. 953 of 1992 (ii) Punjab Wakf Board …..Appellant Vs. Smt.Krishna Devi .........Respondent

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CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA

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Present: Mr. J.S. Bhatia, Advocate for the appellant Mr.S.D.Bansal, Advocate for the Respondents

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Hemant Gupta, J.

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Present appeals are directed against the judgment and decree passed by the learned First Appellate Court whereby suit for possession filed by the plaintiff was dismissed.

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It is asserted by the plaintiff that the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short the 'Act') are not applicable to the wakf property, in question whereas, the defendant is in possession. The Plaintiff claimed possession of such property after termination of the tenancy of the defendant. In the written statement filed, it

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RSA No. 952 & 953 of 1992

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was asserted that the aforesaid Act is applicable to the property in question and that Civil Court has no jurisdiction to entertain the suit. On the pleading of the parties, various issues were framed including the issue regarding the applicability of the provisions of the Act and that whether the tenancy of the defendant has been validly terminated. Relevant issues are reproduced

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below: -

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Whether the suit has been instituted through a duly authorised person? OPP.

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Whether the suit property is a wakf property? OPP 3. Whether the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973 are not applicable to the suit property as alleged? OPP.

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Whether the tenancy of defendant has been terminated validly by the plaintiff? OPP.

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Learned trial Court has recorded a finding that the suit property is the wakf property and in view of the notification dated 7.5.1976 issued by Haryana Government, the provisions of the Act are not applicable to the buildings rented out and the land owned by the wakf. Learned trial Court also recorded a finding on issue No. 4 that notice Ex. P-3 dated 29.2.1988 was served upon the defendant and thus decreed the suit. In appeal, before the learned First Appellate Court, the only argument raised was that notice Ex. P/3 is not valid as the tenancy has been terminated with effect from the date of issuance of the notice and that the tenant has been asked to vacate and hand over the possession of the property after the expiry of fifteen days and that notice is invalid. Reliance was placed upon a full Bench judgment rendered in Bhaiya Ram vs. Mahavir Parshad, AIR 1969 Punjab 110 ,

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RSA No. 952 & 953 of 1992

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wherein it has been held as under: -

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“the notice required to be served in the Punjab (where the statutory provisions of Section 106 of the Transfer of Property Act do not apply and merely its equitable principles have been applied) has to be a notice to quit or a notice terminating the tenancy and such notice must give reasonable time to quit. Considering the law laid down in various decided cases, fifteen days appear to be minimum reasonable period of such a notice. In the Punjab, however, such a notice need not necessarily terminate strictly with the end of a month of the tenancy.”

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After hearing learned counsel for the appellant, following substantial question of law arises for consideration: -

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“Whether the tenancy of the defendant has been terminated validly by the plaintiff?”

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Hon'ble Supreme Court in Bhagabandas Agarwalla vs.

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Bhagwandas Kanu and ors, AIR 1977 Supreme Court 1120, examined the validity of a notice not served in conformity with the requirement of Section 106 of the Transfer of Property Act. It was held that a notice to quit must be construed not with a desire to find faults in it but it must be construed in a common sense manner. It was held to the following effect: -

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Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. "The validity of a notice to quit", as

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RSA No. 952 & 953 of 1992

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pointed out by Lord Justice Lindley, L.J. in Sidebotham v. Holland, (1985) 1 QB 378 "ought not to turn on the splitting of a straw". It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendantism or overrefined subtlety, but it must be construed in a common sense way. See Harihar Banerji v. Ramsashi Roy, AIR 1918 PC 102 . The notice to quit in the present case must be judged for its validity in the light of this well recognized principle of interpretation.

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In the aforesaid case, notice was in respect of the premises governed by the provisions of Transfer of Property Act, 1882. The notice was served to vacate the premises within the month of October 1962 and that the noticee was to be treated as tresspasser from 1^st November 1962. The Court held that the intention of the authors of the notice was clear as they are terminating the tenancy only within effect from end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month.

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Later in M. Vijayalaxmi v. G. Goverdhan Reddy, (1997) 11 SCC 358, Hon'ble Supreme Court has held that no notice for terminating the tenancy was required for the purpose of filing of the suit in a case of tenancy for a fixed period of 11 months. It was held that such tenancy comes to an end by efflux of time.

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Hon’ble Supreme Court in Nopany Investments (P) Ltd. vs. Santokh Singh (HUF), 2008(2) SCC 728 , has held that filing of eviction suit under the general law, itself is a notice to quit on the tenant. Therefore,

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RSA No. 952 & 953 of 1992

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no notice to quit was necessary under Section 106 of the Transfer of Property Act , 1882 (for short the 'Act') to enable the landlord to get a decree of eviction.

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In Bhaiya Ram’s case (supra) , it has been held to the following

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effect: -

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.... It is by now well settled that nothing contained in the Transfer of Property Act requires a tenancy to be terminated by a notice if it has already been determined either according to the terms of the particular lease or under the relevant provisions of the Transfer of Property Act. The question of serving a notice under Section 106 of the Transfer of Property Act arises only in those cases: -

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(1) Where the provisions or principles of that Section are applicable;

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(2) Where the contractual tenancy or the tenancy which is deemed to have come into existence under Section 116 of the Transfer of Property Act is a monthly tenancy; and

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(3) Where such a monthly tenancy is subsisting and has not already come to an end by efflux of time or by forfeiture or by having been determined by an appropriate notice under Section 106 itself.

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.....In this state of law there appears to be absolutely no doubt that an objection as to non-service or invalidity of a notice under Section 106 of the Transfer of Property Act can be waived by a tenant as he is entitled by the express provision of that section to contract out of its requirements. We particularly so hold because in the Punjab the requirement of the notice in question is not even a statutory requirement in the strict sense, but is invoked as a principle of equity, justice and good conscience. (Emphasis supplied)

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Learned Single Bench of this Court in M/s H.M.Traders vs. Bhupinder Singh, 2005(3) PLR 246 has held that a notice hass to be read as

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RSA No. 952 & 953 of 1992

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a whole and use of expression 'hereby' has been rightly held to be mean 'by this notice' . It was held to the following effect: -

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As regards the first contention as to validity of notice, period of 15 days has been given in the notice. The notice has to be read as a whole and use of the expression “hereby” has been righly held to be to mean by this notice, in Chandika v. Sukhnandan, AIR 1981 Allahabad 312 . Same view has also been taken in M/s General Auto Agencies v. Hazari Singh, AIR 1976 Rajsthan 56, Para 25 . The judgment of the Andhra Pradesh High Court in Yerrabhothula Krishna Murty v. Addepalli Subha Rao, AIR 1988 Andhra Pradesh 193, was of a case where Section 106 of the Act was applicable and termination of tenancy was required to be with expiry of the month of the tenancy, which is not the case here. In Bhaiya Ram (supra), a Full Bench of this Court in its conclusion (vi) held

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“The notice required to be served in the Punjab (where the statutory provisions of Section 106 of the Transfer of Property Act do not apply and merely its equitable principles have been applied) has to be a notice to quit or a notice terminating the tenancy and such notice must give reasonable time to quit. Considering the law laid down in various decided cases, fifteen days appear to be the minimum reasonable period of such a notice. In the Punjab, however such a notice need not necessarily terminate strictly with the end of a month of the tenancy.”

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In view of the above, in the present case, though the tenancy

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has been terminated forthwith but the tenant was given 15 days time to vacate the premises. Learned trial Court has recorded a finding of fact that notice Anneuxre P-3 dated 29.2.1998 was served upon the defendant. The

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RSA No. 952 & 953 of 1992

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acknowledgement due has been produced on record as Ex. P-3/1. As observed in Bhaiya Ram’s case (supra) the Transfer of Property Act is not applicable to the area in question. Though, the tenancy has been terminated forthwith but the plaintiff has been given 15 days time to handover the vacant possession and to pay arrears of rent. Such notice is in consonance with the principle of equity, justice and good conscious. Learned first Appellate Court has also recorded finding that notice was served but accepted the appeal of the defendant for the reason that the notice terminated the tenancy of the tenant forthwith though tenant was given fifteen days time to vacate the building. In construing notice, the intnetion of the landlord is required to be deduced. The tenant has been given fifteen days time to vacate building. It meets the intention and purpose of Section 106 of the Transfer of Proparty Act. Thus, the finding recorded that the notice was invalid is not sustainable and are set aside.

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Consequently, the appeal is allowed. The judgment and decree of the trial Court is restored with no order as to costs.

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[HEMANT GUPTA] JUDGE

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25.2.2012 preeti

Punjab Wakf Board, Ambala Cantt v. Jai Ram

Case brief

What is this about?

What did the court decide?

Punjab Wakf Board, Ambala Cantt v. Jai Ram

Case brief

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