Punjab-Haryana High Court
Ambica Parshad And Ors vs Financial Commissioner And Ors on 24 December, 2014
Author: K. Kannan
Bench: K. Kannan
CWP No.13794 of 1989 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.13794 of 1989
Date of Decision.24.12.2014
Ambica Parshad and others .......Petitioners
Versus
Financial Commissioner, Haryana and others ......Respondents
Present: Mr. A.K. Chopra, Senior Advocate with
Mr. N.D. Kalra, Advocate
for the petitioners.
Mr. Sudeep Mahajan, Addl. A.G., Haryana.
Mr. Kanwalvir Singh Kang, Advocate
as amicus curie.
Mr. V.B. Aggarwal, Advocate
for the private respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.
1. The writ petition is at the instance of the landlord who challenges the orders passed by the authorities constituted under the Punjab Security of Land Tenures Act, 1953 that allowed the application filed by the erstwhile tenant of an agricultural land seeking for permission to deposit the balance of the purchase money payable under Section 18 of the Act as a condition precedent to securing a sale deed in the manner contemplated under the Act. The act of the tenant came at a time when the landlord had filed petitions for eviction for non- payment of batai (rent) on a plea that on an earlier agreement entered PANKAJ KUMAR 2014.12.24 18:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13794 of 1989 -2- into between them providing for a transfer of property by the landlord to the tenant became ineffective on account of the default on the part of the tenant in paying the entire sale consideration. Some more facts would require to be stated to consider the legal underpinnings of the controversy.
2. Admittedly, the tenant had been holding the landlord's land on lease in respect of the agricultural land. He had filed an application under Section 18 of the Act seeking for the purchase rights. The law laid down by the Supreme Court in State of Punjab (now Haryana) and others Vs. Amar Singh and others 1974 PLJ 74 required the proof of the fact that the person was entitled to purchase land under Section 18, having been lawfully inducted on the land as a tenant, that the property in respect of which the petition was filed, was outside the landlord's permissible area and within the tenant's permissible area and the further fact about the bona fides of the eligibility for purchase. The learned Senior Counsel appearing on behalf of the petitioner would state that when the petition was filed, the parties had entered into a compromise on 19.03.1969 under the terms of which the price was determined at ` 3000/- per acre for a land measuring 145 kanals 6 marlas. On the same date ` 29,487.50 was paid as a part of the total consideration and the rest of the amount was to be paid by the tenant at the time of mutation and till such an event, the tenant was bound to pay 1/3rd batai. The petitioner's plea is that the total value of the land came to ` 54,487.50 and an application had been moved by the tenant before the Assistant Collector on 06.07.1982 requesting that the balance of amount be got deposited and the mutation to be sanctioned in his PANKAJ KUMAR 2014.12.24 18:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13794 of 1989 -3- favour. The Assistant Collector 1st Grade, Naraingarh dismissed the application on 20.01.1984 holding that it was a matter for adjudication before the Civil Court. He held that no agreement had been produced which could show the terms of payment of the installments and no time limit having been fixed for the payment, the application which was filed in the year 1983 was barred by limitation. The appeal filed by tenant was dismissed but in a further revision to the Commissioner, the matter was remanded for entering of mutation for payment of the balance of amount. This order of the Commissioner had been challenged before the Financial Commissioner who upheld the decision the Commissioner by his decision dated 19.07.1989 and held that the ownership of the land had passed to the tenant on the very day when the order was passed on 19.03.1969 when the portion of the sale consideration had been paid. He directed the deposit of the balance of the amount within one month with the Assistant Collector if the landlord would not accept it. These orders of the Commissioner and the Financial Commissioner are now challenged by the landlord before this Court.
3. The learned Senior Counsel appearing on behalf of the petitioner would state that in terms of the law laid down by the Supreme Court in Amar Singh's case referred to above, it was necessary that the Assistant Collector had entered on the rights of the tenants before accepting the compromise and their having been no proper adjudication on the entitlement of the tenant, the compromise itself was not valid. It was the further contention of the learned Senior Counsel that the very fact that the tenant was directed to pay 1/3rd batai even after the date of compromise showed the jural relationship PANKAJ KUMAR 2014.12.24 18:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13794 of 1989 -4- of landlord and tenant to be continued from the date of compromise and the landlord had actually filed several suits and petitions for recovery of the balance and having forced the landlord to resort to an action for eviction, the tenant has moved the application before the Assistant Collector for deposit more than a decade after the compromise. The Senior Counsel would argue that the Punjab Security of Land Tenures Act itself was repealed and the properties being situate in Haryana, the Haryana Ceiling on Land Holdings Act, 1972 had come into operation. The learned Senior Counsel would refer to Section 33 of the Act of 1972 which repeals the Punjab Security of Land Tenures Act except when the proceedings were actually pending under the Act. The Senior Counsel would argue that after the compromise decree was passed, there was no such proceeding which was pending and after the coming into force of the Haryana Act, there was no scope for any tenant whose case was not pending to have any relief under the Punjab Security of Land Tenures Act. The rights of tenants are governed independently by other provisions and the Assistant Collector lacked the jurisdiction to entertain any petition from the tenant.
4. The tenant has been served but there was no representation and therefore, I had appointed Mr. Kang as amicus to assist the Court and present the case from the tenant's perspective. Sh. Kang would argue that at no point of time was there any attempt made by the landlord to contend that on the day when Section 18 petition was filed, the tenant was not entitled to the benefits of the statutory provision to purchase. The landlord came by a huge benefit by way of a compromise, for, if price had to be determined only under the provisions PANKAJ KUMAR 2014.12.24 18:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13794 of 1989 -5- of the Act, a far less amount would have been payable but the tenant was offering to pay fairly a large sum of money nearly 8 to 10 times than the statutorily provided amount and the compromise was in recognition of the tenant's entitlement to purchase, being beneficial to the landlord and the tenant himself not objecting to payment in excess of what was statutorily liable, the landlord cannot take a contention that the compromise itself was invalid. The decision of the Supreme Court in Amar Singh's case (supra) could only apply in a situation where the compromise is brought about without any application of mind on assessing whether that the tenant was entitled for the benefit or not. When the landlord has not taken such an objection before the authorities below, there was no requirement to doubt the tenant's entitlement to the benefit of purchase. I have seen through the contentions raised before the authorities below and in the grounds of appeal and in all these fora, there has been at no point of time any attempt to plead that the tenant was not entitled to the benefits of purchase at the time when the compromise was made and that the application under Section 18 itself was not competent. It must be remembered that the compromise came in the petition under Section 18 and the objection had been taken before the Assistant Collector only to the extent that the tenant did not act as per the undertaking of payment 1/3rd batai in the manner agreed to by him and the application filed was barred by limitation. Indeed, the Assistant Collector, who had dismissed the tenant's application only directed that the terms of the agreement had not been brought on record by filing the agreement itself and the right will have to be determined by the Civil Court. The PANKAJ KUMAR 2014.12.24 18:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13794 of 1989 -6- application before him, he held, was barred by limitation. I would hold that if the tenant had not paid the 1/3rd batai it cannot mean that the compromise itself cannot come into effect. The compromise, as Sh. Kang points out, was complete in itself, in so far as it determined price and also recorded the fact that one installment had been paid on the same date. The counsel would refer to Section 18 of the Act of 1953 and point out to the fact that notwithstanding anything to the contrary contained in any other law, a tenant of land owner other than a small land owner who had been in possession of the tenancy for a minimum period of six years or who had been restored to its tenancy under the provisions of the Act or who was ejected from the tenancy after 14.08.1947 and before the commencement of the Act was entitled to purchase the property. The counsel would state that it was not the contention of the petitioner before the authorities that the tenant's case did not come within any of the three clauses. It would contend that the purchase price as per Section 18(3) was 3/4th of the value of the land determined in the manner set out under sub-section 2 and clause (4) of Section 18 provided for the manner of transfer of title. According to him on the payment of the first installment, the property stood transferred to the tenant in terms of the Section. The said provision would require to be extracted for considering the strength of the argument.
"18.(4) (a) The tenant shall be competent to pay the purchase price either in a lump sum or in six-monthly installments not exceeding ten in the manner prescribed.
(b) On the purchase price or the first installment thereof, as the case may be, being deposited, the tenant shall be deemed to have become the owner of the land, and the PANKAJ KUMAR 2014.12.24 18:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13794 of 1989 -7- Assistant Collector shall, where the tenant is not already in possession and subject to the provisions of the Punjab Tenancy Act (XVI of 1887) put him in possession thereof.
(c) If a default is committed in the payment of any of the installments, the entire outstanding balance shall, on application by the person entitled to receive it, be recoverable as arrears of land revenue.
5. Clause (a) provides that the tenant was entitled to pay whole of the amount in one lump sum or in six installments. In this case, the tenant had not opted to pay entire sale consideration but he paid only one installment. Clause (b) states that on the purchase price or the 1st installment being paid, the tenant shall be deemed to become the owner of the land. The counsel would argue that on the payment of the 1st installment on the same day of compromise, the tenant had become the owner and any contractual term that he would continue to pay the batai must only be understood as stating for a manner of payment which was inconsistent with the rights of ownership. The reference to batai must only understood as payment of the remaining installments. I would accede to the contention and hold that in terms of Section 18(4)(b) on the payment of the 1st installment, the tenant had already become the owner of the property. If he had become owner of the property and there was still a balance which was remaining payable and if the amount had not been paid within six installments, clause (i) would operate not to divest the vesting which had taken place but only would enable the landlord to recover the balance as arrears of land revenue. Clause (c) itself is recognition of the irrevocability of the tenant's right as an owner and so long as the amount was not fully paid, it should only be taken that the proceeding was still pending without PANKAJ KUMAR conclusion of payment of balance of money. To me, the test would be 2014.12.24 18:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13794 of 1989 -8- to see whether the landlord would have been barred from recovering the balance of money by the only fact that the amount had not been paid and the mutation being entered in his name or in six installments in the manner contemplated under clause (b). In Chanan Mal Newar and others Vs. State of Haryana and others 1977 PLJ 81 raising an issue of when the proceedings for determination of surplus area are pending under Section 33(2)(ii) under the Haryana Ceiling on Land Holdings Act, 1972, the Court held that if the litigant could take any proceedings in any case such proceeding will be considered to be pending. To our benefit, the interpretation must be the competency of the tenant to pay the balance without any fetter being placed under the Act itself must result in a situation of the proceedings to be pending to enable to the tenant to secure the full benefit of a compromise. In Mishri and Lalman Vs. Financial Commissioner, Haryana and others 1977 PLJ 129, this Court has held that the right of a tenant to secure the benefit of Section 18 will remain unaffected although an application for purchase money had been made before the commencement of the Haryana Act and had not concluded at the time when the Haryana Act came into force. The fact that portion of the amount of consideration stood unpaid was itself sufficient to benefit the tenant to plead that the proceedings had not come to an end.
6. The right of landlord could be only for recovery of the balance of sale consideration and it could never have been lost, for, he had at all times the right to recover the balance of amount as a land revenue. The same principle ought to apply also for the tenant who had become the owner on payment of the 1st installment and Section 33 of PANKAJ KUMAR 2014.12.24 18:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13794 of 1989 -9- the Haryana Act must be read in such a way that the offer to payment of the balance of sale consideration when such balance remained due must itself mean that the proceedings had not completed and the tenant was entitled to apply before the Assistant Collector for the balance of amount. The order passed by the Commissioner and the Financial Commissioner recognizing the right of the tenant as an owner was, under the circumstances, justified and I find no reason to interfere with the same. I place on record my appreciation for the assistance rendered by Sh. Kang as an amicus curiae. He shall be entitled to be paid the remuneration as per the scales of of amount out of amicus funds and on his application for the same, the amount be drawn from the fund and paid as per the procedure laid down.
7. The writ petition is dismissed.
(K. KANNAN) JUDGE December 24, 2014 Pankaj* PANKAJ KUMAR 2014.12.24 18:09 I attest to the accuracy and authenticity of this document Chandigarh