Punjab-Haryana High Court
Pritam Singh Through His L.Rs vs Financial Commissioner on 4 October, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.20067 OF 2010 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: October 4, 2012
Pritam Singh through his L.Rs
.....Petitioner
VERSUS
Financial Commissioner, Animal Husbandry, Punjab, Chandigarh
and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. G. S. Punia, Advocate,
for the petitioner.
Mr. B.B.S.Teji, Addl.A.G., Punjab,
for the State.
Mr. M. L. Sarin, Sr.Advocate with
Mr. Vijay Sharma, Advocate,
for respondent Nos.10 to 13.
*****
RANJIT SINGH, J.
The petitioner and his father, namely, Sardar Singh were inducted as tenants on the suit land with liability to pay fixed Chakota of `270/- per annum since the year 1956. This rate of Chakota is also found recorded in the copies of jamabandies for the years 1958- 59, 1963-64 and 1968-69. As per the petitioner, the rate of rent and CIVIL WRIT PETITION NO.20067 OF 2010 :{ 2 }:
its mode of payment could not be legally changed without the mutual consent of both the parties. Still, Ram Lal, father of the respondent Nos.5 and 6, got the entries changed in the jamabandies illegally in connivance with the then Patwari to record that the petitioner's possession was Bila Lagaan Bawaja Qubza Zaberdast. Thereafter, he filed a suit for eviction of the petitioner under Section 77 (iii) of Punjab Tenancy Act, 1887 (for short "the Act") read with Section 7 to 7-A and 8 of the Pepsu Tenancy & Agricultural Act, 1955 (for short "Pepsu Act"). Respondents also sought recovery of rent at the rate of 1/3rd share of the produce amounting to `6383-83P for the crops from Hari 1978 to Sauni 1980. This suit was decreed by Assistant Collector Ist Grade on 5.1.1984. Respondent Nos.5 and 6 subsequently filed an application for execution of this decree on 5.5.1987, which was dismissed by the Assistant Collector Ist Grade on 30.12.1988 on the ground that decree stood fully satisfied and the petitioner had already paid an amount of `4933.24P as per the decree.
Without making any mention to the abovesaid facts, respondent Nos.5 and 6 instituted another suit under Section 77(3) of the Act on 5.7.2007 for ejectment of the petitioner and for recovery of rent amounting to `45,684/- for use and occupation of this land for the years Kharif 1994 to Rabi 1997. The said suit was also decreed on 5.7.2007. Assistant Collector while allowing this suit relied upon the decree dated 5.1.1984 stating that the petitioner had already been evicted vide this decree and the execution of the same was pending. On this basis, it was observed that petitioner is in illegal CIVIL WRIT PETITION NO.20067 OF 2010 :{ 3 }:
possession of the suit land. According to the petitioner, this contention was factually incorrect and shows non-application of mind. Aggrieved against this, the petitioner filed an appeal before the Collector, which was dismissed on 11.2.2009. The Collector also fell in the same trap and relied upon an earlier decree dated 5.1.1984. Divisional Commissioner also dismissed the revision by expressing the same opinion and even the Financial Commissioner did so. The petitioner would contend that the authorities did not consider the plea of the petitioner that he was required to be afforded an opportunity to pay the arrears or rent within further period of six months from the date of decree or the order directing his ejectment. As per the petitioner, he was always ready and willing to pay the rent.
Notice of motion is issued and the reply is filed by the private respondents. Private respondents have raised number of preliminary submissions. They claim to be owners of land in question measuring 27 kanals 7 marlas as they had purchased the same from Ram Lal. As disclosed in the reply, Ram Lal had filed an ejectment petition on 22.7.1981 against the petitioner. Assistant Collector Ist Grade, Patiala had then ordered ejectment of the petitioner besides directing him to pay sum of `4933.24P within six moths, i.e, the statuary period or vacate the land forthwith. The petitioner still did not pay this amount within six months and rather filed an appeal before the Collector, which was dismissed on 3.12.1984. The petitioner filed a revision which was also dismissed and only then he had deposited the amount on 24.4.1987.
Having given this background, respondents would refer to CIVIL WRIT PETITION NO.20067 OF 2010 :{ 4 }:
the fact that petitioner did not pay any amount for use and occupation of this land from Kharif 1994 to Rabi 1997 and sum of `45,684/- being 1/3rd share of produce of agricultural land was accordingly claimed. Ram Lal again filed an ejectment application. He pressed two grounds for eviction of the petitioner. Ram Lal pleaded that the petitioner had not paid for use and occupation charges of the land previously as well and, therefore, his conduct is not good. He further pleaded that Ram Lal is a small land owner and, therefore, required this land for cultivation. On the basis of this evidence, the ejectment of the petitioner was ordered on 5.7.2007. As per the respondents, the petitioner still did not deposit the amount within a statutory period of six months from the date of the order and instead challenged the order before Collector. The appeal, however, was dismissed on 11.2.2009, whereupon he filed a revision which was also dismissed on 13.10.2009. Still, the petitioner filed a revision before Financial Commissioner which was dismissed on 27.10.2010. Accordingly, it is pleaded that the petitioner did not deposit the batai within a statuary period of six months and, thus, he is liable to be ejected. Submission is that if a tenant does not pay rent within a period of six months, his tenancy would stand terminated as per Section 71(b) of the Act. This section provides that one opportunity should be granted to the tenant to pay rent within six months from the date of decree, but this period is not extendable.
The executing court has already issued warrant of possession when the petitioner filed a civil suit for declaration to the effect that he became owner by way of adverse possession and on CIVIL WRIT PETITION NO.20067 OF 2010 :{ 5 }:
this ground challenged the ejectment proceedings as well. The trial court granted interim stay staying his dispossession, but appeal against the same was allowed by Addl.District Judge, Patiala, which the petitioner had impugned by filing a civil revision before this court. This revision, however, was withdrawn. Accordingly, it is pleaded that no case for interference under Article 226 of the Constitution of India is made out.
The petitioner has also filed replication contesting the submissions advanced by the respondents. The petitioner would highlight the fact that the earlier decree stood satisfied, which fact has not been disclosed by the respondents in their reply. The finding by the court then was that the decree holder is not entitled to possession of the land in execution of decree dated 5.1.1984.
The petitioner has contested the averment made in the reply regarding the grounds which were advanced for ejectment of the petitioner. The petitioner would term this averment to be vague. As per the petitioner, the respondents had claimed ejectment on two grounds, which related to non-payment of rent from Kharif 1994 to Rabi 1997 and that the respondent is a small land owner and required land for his personal cultivation. As per the petitioner, the impugned order passed by the Assistant Collector is contradictory as in one part he has recorded that the relationship of landlord and tenant was proved, whereas in another part he has mentioned the petitioner to be in illegal possession of the suit land. As per the petitioner, the statuary period given under Section 7 of the Pepsu Act for payment of rent was not provided to him and, thus, this order would CIVIL WRIT PETITION NO.20067 OF 2010 :{ 6 }:
be bad on this ground. The petitioner further states that the plea on the one hand is that the petitioner is an unauthorised occupant and so be ejected under Section 77(3) of the Act, which is a contradiction. As per the petitioner, no tenant shall be ejected under Section 7(1)(b) of the Pepsu Act, unless he has been afforded an opportunity to pay the rent due within a further period of six months from the date of decree or the order directing the ejectment and that he has failed to pay such arrears within that period. Grievance of the petitioner is that no opportunity was provided to him to pay the rent as provided under Section 7 of the Pepsu Act and accordingly this order is rendered wholly illegal and against the Statute.
Let us first deal with some preliminary objections raised by the respondents, which are pressed hard. It is alleged that the petitioner has not approached this court with clean hands. Counsel contends that petitioner has not disclosed the fact of filing a civil suit where the same relief was claimed and that this relief was declined. Accordingly, the petitioner cannot now seek the same relief through the present writ petition. The counsel for the petitioner, however, would respond by pointing out that the orders passed by the civil court are noticed and reflected in the impugned orders and, hence, it can not be a case of withholding of any information. The counsel would further submit that the relief claimed in the civil suit was for declaration claiming ownership and the other reliefs claimed were only consequential reliefs and, hence, the suit is no bar to file a writ petition to challenge the order of eviction.
Ram Lal respondent had sought ejectment of the CIVIL WRIT PETITION NO.20067 OF 2010 :{ 7 }:
petitioner under Section 77(3) of the Act for use and occupation of the land without his consent and for recovery of amount of `45,684/- as 1/3rd share of the batai. Non-payment of rent for the crops kharif 1994 to Rabi 1997 was pleaded as ground in addition to the plea that said Ram Lal was a small land owner and so required this land for his personal cultivation. The plea of the petitioner against the impugned order of eviction is that he was required to be given time to pay the rent or alternatively vacate the disputed land. This was the order passed by Assistant Collector on 5.1.1984.
The counsel for the petitioner has primarily pressed his submission that the impugned orders have been passed on a misleading averment made by the respondent-landlord. The counsel contends that the perusal of the judgment and decree passed by the Assistant Collector 1st Grade would show that the Assistant Collector 1st Grade has primarily relied upon decree dated 5.1.1984 to hold that the petitioner stands evicted from the land in dispute and the execution of the said decree is pending. On this basis, perhaps he has viewed that the petitioner is in illegal possession of the suit land. As per the counsel, this finding is factually misconceived and shows non-application of mind. The Collector and all authorities in chain have also ignored this fact. In this context, the counsel has further elaborated that Section 7 of the Pepsu Act would require that tenant can only be ejected once he is afforded an opportunity to pay the arrears of rent within a period of six months. As per the counsel, this opportunity was never provided to the petitioner.
On the other hand, counsel for the respondents would CIVIL WRIT PETITION NO.20067 OF 2010 :{ 8 }:
contest this issue and would confront the petitioner with filing of a civil suit, which according to him would stand as a bar to seek the same relief through the present writ petition.
If the issues struck by the Assistant Collector 1st Grade are noticed, it would show that he was not conscious about the earlier ejectment as ordered had been finalised and that the said decree stood executed. If he had so acquainted himself, there was no need to strike an issue whether second suit for ejectment against the defendant was maintainable, which is one of the issues framed by him. Another issue was whether previous suit of the plaintiff decreed on 1/3rd batai and what is the effect thereof. While deciding this issue concerning the effect of the earlier ejectment, the Assistant Collector has clearly observed that the execution pursuant to the order of eviction passed on 5.1.1984 was pending and that amount of Chakota had not been paid. On this basis, he has observed that defendant is in illegal possession of the suit land. On this basis, he has held that the respondents herein had rightly filed the second suit. Assistant Collector had specially held that suit for eviction regarding the suit land was decreed on 5.1.1984 and despite eviction order, the plaintiff is still in illegal possession of the suit land. This issue was decided in favour of the plaintiff-respondent. Factually, this observation and finding is wrong. The affect of this wrong finding has not been appreciated even by the Collector. Even the Collector has observed that as per the judgment and decree dated 5.1.1984, the present petitioner-appellant has been dispossessed and there remained no relationship of tenant and landlord. He has also noticed CIVIL WRIT PETITION NO.20067 OF 2010 :{ 9 }:
that execution of the decree dated 5.1.1984 was still pending, which again is based on misconceived and wrong appreciation of facts. Before the Commissioner, this fact was clarified but he left the issue undecided by observing that the petitioner should bring this to the notice of the civil court which had passed order restraining the respondents from taking possession before Assistant Collector 1st Grade, Patiala.
The Financial Commissioner declined to interfere without fully going into the effect of Section 7 of the Pepsu Act. In his support, the counsel for the petitioner has relied on the decision of this Court in Hira Singh and others Versus Mst.Gauran and others, 1966 PLJ 10. It is observed that after the date on which the proviso to Section 7 of the Pepsu Act has come into force, no tenant could be ejected in proceedings based on non-payment of rent unless and until the amount due on account of rent had been determined by the court and the tenant had been allowed six months from the date of such determination to pay the arrears and this proviso was held applicable to pending cases. On the other hand, counsel for the respondents has referred to large number of other judgments to canvass that there was no need to give any further time to the petitioner to deposit the rent and time of six months as given under the provisions of the Act is not extendable.
The counsel for the respondents has referred to Gurmej Singh and others Versus The Financial Commissioner, Revenue, Punjab, Chandigarh and others, AIR 1981 Punjab and Haryana 34, unreported judgment in Civil Writ Petition No.2625 of 1983 CIVIL WRIT PETITION NO.20067 OF 2010 :{ 10 }:
(Nikka Ram (deceased) through LRs Versus The Financial Commissioner Punjab, and others), Ram decided on 1.6.2011, Manohar and others Versus Financial Commissioner, Haryana and others, 2000(2) PLJ 460 and Dhara Singh Versus Financial Commissioner, Revenue, Punjab, 1995(1) PLR 128.
Gurmej Singh (supra) was a case which was filed under Punjab Security of Land Tenures Act under Section 14-A(ii). The scope of the Section and tenant not paying rent admitted by him was being considered in this case, where it was held that the jurisdiction of the authority to grant further time to tenant would not be there. Section 14 basically makes a provision for summary procedure. Thus, in this case, the court was not considering the proviso under Section 7 of the Pepsu Act, which has made a specific provision for granting time to the tenant where he has failed to pay the rent within a period of six months after it falls due. As per this proviso, 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 decree or the order directing the ejectment and he had failed to pay such arrears during this period. The issue in this case, thus, would be to see whether this six months period is to be provided by the court or shall be deemed to have been so provided even if no such direction or even if no such permission is granted by the court ordering ejectment.
The decision in the case of Hira Singh (supra) referred to above and relied by the counsel for the petitioner apparently has held that after the date on which the proviso to Pepsu Act has come CIVIL WRIT PETITION NO.20067 OF 2010 :{ 11 }:
into force, no tenant could be ejected in the proceedings based on non-payment of rent, unless amount due had been determined and tenant had been allowed six months from the date of such determination to pay the arrears. This proviso is applicable to all pending cases. This time had not been granted and the ejectment of the petitioner was directly ordered.
In the unreported case of Nikka Ram (deceased) (supra), the period of six months had been granted as per the proviso. This is so not noticed by the court as can be made out where the court has recorded that Assistant Collector 1st Grade, Patiala directed the respondent-tenant to pay `4,276.85 to the petitioner as 1/3rd share of crop from Rabi 1968 to Kharif 1970 along with costs within six months from the date of the order otherwise they were to be ejected from the land in dispute. Thus, the court in this case was not considering the ejectment where such period was not granted as per the proviso. The tenant had not paid the amount within six months and if the amount required had been paid within six months, the ejectment was to be saved or not. Accordingly, the ratio in this case may also not strictly apply to the facts in the present case.
Manohar Lal's case (supra) was a case where the petitioner had compromised during the pendency of ejectment petition and had agreed to pay the rent upto 15.4.1996, which he did not comply and so the jurisdiction to extend this time was under
consideration. Thus, the ratio of law emerging here may be of no relevance in the instant case.
CIVIL WRIT PETITION NO.20067 OF 2010 :{ 12 }:
In Dhara Singh's case (supra), the effect of the proviso to Section 7(1)(b) has been considered. No doubt, this court had formed a view that the period of six months from the date of decree of the order directing the ejectment is not further extendable as the Statute does not permit any extension of time beyond the period of six months from the date of decree, but in this case no such time was ever granted to the petitioner-tenant and, therefore, the question of further extension on this count which is impermissible as has been held in this case may also not have much relevance in the facts of this case.
In the case of Janak Raj and others Vs. State of Haryana and others, 2009 (2) R.C.R. (Civil) 346, the Court was considering the right of a tenant to deny the tenancy and it is observed that tenant is estopped from claiming adverse possession against the landlord. That issue in the facts of this case no more would arise for consideration once the said issue raised by the petitioner stands decided. In this case, the court has observed that the tenant who has failed to tender the arrears of rent before the Assistant Collector or the higher authorities, cannot be permitted to tender rent at the stage of writ petition to demolish the entire case of the landlord. The issue, however, in the present case is to be viewed slightly differently. Here the issue would be in the context of proviso to Section 7(1)(b) which is making a provision for providing obligations on the part of the court to grant time for a period of six months even after determining the rent which may be found payable and the eviction has to be so deferred for six months, which issue CIVIL WRIT PETITION NO.20067 OF 2010 :{ 13 }:
apparently did not arise in the case of Janak Raj (supra).
The case of S.K.Mittal Vs. The State of Haryana & Ors., 1997(1) CLJ(C, Cr.& Rev.) 581 referred by the counsel for the respondents regarding alternative remedy to file a writ petition when the civil suit has been withdrawn may now be considered. The counsel for the petitioner has been able to show that the civil suit was for some different relief and the relief against ejectment was incidental thereto. Since these orders are being found reflected and noticed in the orders passed, the petitioners cannot be blamed much for withholding this information. A tenant who has continued to remain in possession of this land for considerable period and has been ordered to be ejected on the ground that he is unauthorized occupant having not complied with the earlier ejectment ordered which was factually wrong and incorrect cannot be easily non-suited and ejected on technical ground like this which is not fully established.
Rather, this Court in Shrimati Gita Devi Versus Financial Commissioner, Haryana and ors., 1987 PLJ 265 has directly considered the issues arising in the present case. The court while considering the provisions of Section 7(1)(b) of the Pepsu Act and the issue of deposit of rent beyond period of six months, has held that the Courts would have jurisdiction to extend the time in appropriate cases. This proviso is held to make a clear provision that tenant is entitled to protection and ratio of Full Bench in the case of Gurmej Singh (supra), referred by the counsel for the respondents, was held different and not applicable in such cases. In this regard, CIVIL WRIT PETITION NO.20067 OF 2010 :{ 14 }:
the following observations made in the case of Shrimati Gita Devi (supra) may deserve notice and are as under:-
"In all fairness to the learned counsel for the petitioner, it may be mentioned that placed reliance on a Full Bench judgment of this Court in Gurmej Singh and others v.
The Financial Commissioner, Revenue, Punjab, Chandigarh and others, 1980 P.L.J. 603, wherein while interpreting the provisions of Rule 22 and the stipulation in form `N' of the Punjab Security of Land Tenures Rules, 1956, it has been held that the period of one month for deposit of arrears of rent stipulated in Form `N' cannot be extended by the Assistant Collector or the Appellate or the Revising Authority, as no such jurisdiction vests in them. In my view, the tenor, language and the intention of the statutory provisions which came in for consideration before the Full Bench are altogether different and the ratio of the said judgment cannot be applied to the present case".
The court in Gita Devi's case (supra) even has gone further to hold that where Assistant Collector had directed tenant to deposit arrears within six months or face eviction and that the tenant had filed an appeal before the Collector which was dismissed, then the limitation of six months to deposit the rent would start from the date of the order of the Collector. It is held that dismissal of appeal by Collector be construed as a fresh decree for ejectment as decree under appeal passed by Assistant Collector merges with the same.
CIVIL WRIT PETITION NO.20067 OF 2010 :{ 15 }:
Support for this view is taken from the cases of Dattatraya v. Shaikh Mahaboob Shaikh Ali and another, A.I.R. 1970 Supreme Court 750 and Amarjit Kaur Versus Pritam Singh and others, 1974 P.L.J. 406.
It appears that in this case, the Court has not looked into the affect of proviso to Section 7 of the Pepsu Act, which reads as under:-
"7. Termination of tenancy:-(1) No tenancy shall be terminated except in accordance with the provisions of this Act or except of any of the following grounds, namely:-
3[(a)] * * * *]
(b) that the tenant has failed to pay rent within a period
of six months after it falls due:
2[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 had failed to pay such arrears during that period;] (c ) that the tenant, not being a widow, 3[a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reason or physical or mental infirmity] has after commencement of the President's Act sublet without the consent in writing of the landowner, the land comprising his tenancy CIVIL WRIT PETITION NO.20067 OF 2010 :{ 16 }:
or any part thereof"
It is noticed that the authorities have passed the order under some misconceived appreciation of facts relating to the earlier order of eviction, which was taken to be pending but in fact was not pending and the execution thereof has been satisfied. I would, therefore, deem it appropriate to remand this case back to the Financial Commissioner to consider these two aspects of the case and see if the order impugned before him could be so sustained. The Financial Commissioner would first see if the earlier eviction order is taken out of consideration, as it is required to be, will have any affect on the order of eviction passed in this case. He would further consider if after directing eviction on account of non-payment of rent, the petitioner was required to be afforded further period of six months for depositing the rent as is required by proviso to Section 7(1)(b) or the tenant is required to do so voluntarily without any direction from the authorities, like Assistant Collector, who had passed the order of ejectment. The plea of the petitioner is that the Assistant Collector was required to afford him the opportunity to deposit the rent and the same having not been granted would violate provisions of proviso to Section 7(1)(b). The observations made in Hira Singh's case (supra) may tend to support the submission of the counsel for the petitioner. The submissions made to the contrary on the basis of some judgments, which have been referred to above by the counsel for the respondents, have been noticed and may not strictly be applicable or attracted to the facts of the present case. However, these may also be considered in the light of submissions so made. It CIVIL WRIT PETITION NO.20067 OF 2010 :{ 17 }:
is, therefore, considered appropriate to remand this case to the Financial Commissioner for considering the issues in the light of observations made above. Since the case is pending for quite some time, it would be appropriate for the Financial Commissioner to decide the same within a period of four months from the date of receipt of copy of this order.
October 4, 2012 (RANJIT SINGH ) ramesh JUDGE