Punjab-Haryana High Court
Kesar Singh vs The Financial Commissioner on 16 September, 2013
Author: G.S. Sandhawalia
Bench: Jasbir Singh, G.S. Sandhawalia
LPA No. 1433 of 2013 (O & M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
LPA No. 1433 of 2013 (O & M)
Date of Decision:- September 16, 2013
Kesar Singh ..............APPELLANT(S)
vs.
The Financial Commissioner, Haryana and others ...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE G.S. SANDHAWALIA Present:- Mr. H.S. Baidwan, Advocate, for the appellant.
Mr. D. Khanna, Addl. A.G., Haryana.
Mr. Parminder Singh, Advocate, for the applicant-respondent no. 5.
G.S. SANDHAWALIA, (J.) C.M. No. 4140-LPA of 2013 Application is allowed.
Reply and documents filed on behalf of respondent no. 5 are taken on record, subject to all just exceptions. LPA No. 1433 of 2013
1. The present judgment shall dispose of three appeals i.e. LPA Nos. 1433, 1547 and 1548 of 2013, as common question of fact and law is involved in all the three cases. The facts are being taken from LPA No. 1433 of 2013, Kesar Singh vs. Financial Commissioner, Haryana and others arising out of CWP No. 16264 of 2013 decided on 30.07.2013.
2. The learned Single Judge, vide the impugned judgment, Gupta Shivani 2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 2 dismissed the writ petitions, which challenged the ejectment of the appellant on the ground of non-payment of rent from Rabi 1993, which had been ordered initially by the Assistant Collector on 09.11.2011 (Annexure P-4) and thereafter upheld in appeal by the Collector on 24.01.2012 (Annexure P-6) and further upheld by the Commissioner on 06.07.2012 (Annexure P-7) and in the second revision by the Financial Commissioner on 15.07.2013 (Annexure P-9). The submission made before the learned Single Judge was that Section 14-A(i) of the Punjab Security of Land Tenures Act, 1953 (in short 'the Act') was pari materia to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The reliance of the appellants on Rakesh Wadhawan and others vs. Jagdamba Industrial Corporation and others, 2002 (2) PLR 370 was distinguished on the ground that in that case the amount tendered by the tenant was found to be short and, therefore, invalid and the tenants were ordered to be evicted by the authorities below, which was subsequently set aside. It was held that in the present case, that once the tenant had denied the liability to pay the rent, the question of assessment would not arise since he had taken the plea that he had already paid the rent and was not obliged to pay the rent. It was further recorded that the Assistant Collector Ist Grade, on 29.10.1995, had given an opportunity to the counsel to deposit the amount before the next date of hearing but the appellant had taken the plea that he had already made the payment and, therefore, was not in arrears.
3. The factual aspect is necessary to be adverted to in the present case in view of the submission made by counsel for the appellant that he had offered to pay the rent but the landlord had refused to accept the same. Gupta Shivani 2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 3 Perusal of the written statement filed in the ejectment application for land measuring 20 kanals 8 marlas situated in village Sambli, Tehsil Nissing, District Karnal on the ground of non-payment of rent would show that a plea was taken by the appellant that the application was not maintainable and he had already paid the rent of `100/- per acre and the ejectment on the ground that the rate of rent was `6000/- per acre was not correct. The Assistant Collector Ist Grade, on 09.11.2011, came to the conclusion that the appellant was a tenant in the land in question as per the revenue record and there was no mention of rent and the onus was upon him to prove the fact regarding the rate of rent by producing the receipts of Batai. Accordingly, it was held that the amount demanded was legally proper @`6000/- per acre. Since nothing had been paid since Rabi 1993, the ejectment was ordered.
4. As noticed above, the said orders were upheld by the revenue authorities. It is, however, important to note that before the written statement was filed, Assistant Collector Ist Grade, on 26.10.1995, had given an opportunity to the appellant to deposit the amount of the disputed crops of the land in dispute before the date fixed. Relevant portion of the zimini order is reproduced as under:-
"Counsel for the parties are present. Now case be put up on 16.11.95 for written statement. If counsel of the respondents wants to deposit the amount of the disputed crops of the land in dispute, then he can do so before the date fixed.
Sd/- A.C. Ist Grade 26.10.95"Gupta Shivani
2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 4
5. Thereafter, on 15.12.1995, the appellant had, before filing their written statement, had offered the amount of batai at `100/- per acre, which was refused by respondent no. 5-landlord. The relevant portion reads as under:-
"Counsel for the parties are present. The respondent has stated that he deposits the amount of batai @ Rs. 100/- per acre per year. But counsel for the respondents has stated that the amount of batai is less and therefore he does not accept the same. Thus, the case be now put up for written statement on 22.12.95.
Sd/- A.C. Ist Grade, 15.12.95"
6. The written statement was filed thereafter taking the plea regarding the rate of rent as per the tenant at `100/- per acre and that no receipt of rent was ever issued either by Heera Devi or Krishna Wati, the predecessor-in-interest of respondent no. 5. The plea was also taken that the land was offered to be purchased @ `24,000/- per acre and a sum of `35,000/- had also been paid towards the sale price. The Assistant Collector allowed the ejectment by holding that the rate of rent was `6,000/- without examining the evidence on record that the rate of rent was `100/- per acre as per earlier statement of the Mohatmin and the affidavit and held as under:-
"I have heard the arguments of the learned counsel for the parties and have also perused the evidence on the record. It is correct that in Ex. A-2, Gupta Shivani 2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 5 Jamabandi in the column of rent, there is no mention of rent in the same. But in the present circumstances, also the rate of rent of the land in question cannot be Rs. 100/- per acre. Moreover, the onus of proving this fact was of the respondent and who would have produced the receipts of Batai of the tenants of the adjoining land. But the respondent has been unable to do so. As far as the contentions of the respondent that the land in question was sold to him @ Rs. 24000/- per acre is concerned, no such evidence has been produced before the Court. Hence, I have reached to this conclusion that the Batai demanded by the petitioner of Rs.6000/- per acre is legally proper and which has not been paid by the respondent since Rabi 1993 inspite of demand being made. Therefore, I allow the petition filed by the petitioner and order the ejectment of the respondent from the land in question. The record after compliance be consigned to the record room."
7. This aspect of the offer of the rate of rent was again reiterated before the Collector but the Collector, vide order dated 24.01.2012, dismissed the appeals by holding that the appellants had not been paying the rent since the year 1993. Operative portion of the order reads thus:-
"In all the three appeals there is one respondent, the facts are common and the three appeals have been filed against one order. The counsel for the appellants is also ready to address common arguments in all the Gupta Shivani 2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 6 three appeals. On the filing of the above three appeals, the preliminary arguments of the counsel for the appellants were heard. The counsel for the appellant submitted that the order passed by the Court below is against law and facts and the order of ejectment has been passed against the facts on the record and the same be set-aside. The counsel for the appellants further submitted that they are cultivating the land in question for the last 40 years on payment of rent @ Rs.100/- per acre per year and the land owner has never issued any receipt etc. to them. Today also they are ready to pay the Batai @ Rs.100/- per year. On the other hand, the respondent is demanding the batai @ Rs.6000/- per annum per acre, but they have not produced any such evidence from which it can be proved that the Batai of the land in dispute is Rs.6000/- per acre per year. The counsel for the appellant further submitted that as per the Punjab Security of Land Tenures Act, the rent of the land cannot be in excess of 1/3rd batai. The appellants have not been paying the batai to the respondents since the year 1993. Keeping in view the above facts there is no merit in the appeal and the same is dismissed. The appellant is granted 30 days time to file the appeal. Till then, the order dated 9.11.2011 of the court below shall remain stayed."Gupta Shivani
2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 7
8. Before the Commissioner, a plea taken was that under Section 14A(i) of the Act, an opportunity was to be given to deposit the rent, which was rejected on the ground that there was no evidence that the rate of rent was `100/-. The Financial Commissioner held that the appellant could have taken recourse to Section 14(iii) of the Act and filed an application for depositing the batai as per the accrued rent since the case was filed in the year 1995 and was decided in 2011.
9. The liability of the tenant to be ejected under the Act is provided for under Section 9(ii) of the Act on account of failure to pay rent regularly without sufficient cause. However, the provisio of Section 14A(i) of the Act goes on to show that where a tenant makes the payment of arrears of rent and interest which had to be calculated by the Assistant Collector Ist Grade at 8% on such arrears, shall either on the first date of hearing or within 15 days from the date of such hearing, be deposited and on which the tenant shall not be ejected. Sections 9(ii) and 14A(i) of the Act reads as under:-
"9. Liability of tenant to be ejected.- (1) Notwithstanding in any other law for the time being in force, no land-owner shall be competent to eject a tenant except when such tenant-
(i) xxx xxx xxx xxx
(ii) fails to pay rent regularly without sufficient cause;"
[14-A. Procedure for ejectment and recovery of Gupta Shivani 2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 8 arrears of rents etc.- Notwithstanding anything to the contrary contained in any other law for the time being in force, and subject to the provisions of section 9-A.-
(i) a land owner desiring to eject a tenant under this Act shall apply in writing to the Assistant Collector First Grade, having jurisdiction, who shall thereafter proceed as provided for in sub-section (2) of section 10 of this Act, and the provisions of sub-section (3) of the said section shall also apply in relation to such application, provided that the tenants rights to compensation, and acquisition of occupancy rights, if any, under the Punjab Tenancy Act, 1887 ( XVI of 1887), shall not be affected;
[Provided that if the tenant makes payment of arrears of rent and interest, to be calculated by the Assistant Collector, First Grade, at eight percentum per annum on such arrears together with such costs of the application, if any, as may be allowed by the Assistant Collector, First Grade, either on the day of first hearing or within fifteen days from the date of such hearing, he shall not be ejected.]
10. Thus, from the above proviso which was introduced by the Haryana Act of 1991, it would be clear that it was the duty of the Assistant Collector Ist Grade to direct the appellant to deposit the arrears of the rent and interest which were to be calculated by the said Court @ 8%. The appellant had offered to deposit the same but, as noticed above, on Gupta Shivani 2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 9 15.12.1995, respondent's no. 5 counsel had refused to accept the same on the ground that it is less since it was offered @ `100/- per acre, as per the stand of the appellant-tenant. For this non-deposit, the appellant could not be faulted due to the fact that the landlord had refused to accept the same. That the liability of the tenant to be ejected under Section 9(ii) of the Act was noticed by the Apex Court in Raj Kanta vs. Financial Commissioner, Punjab, 1980 (3) SCC 589. It was held that failure to pay rent regularly should be without sufficient cause.
11. In the present case, as it has been noticed, there was a dispute regarding the rate of rent inter se the parties. The appellant was ready to pay the amount @ `100/- and deposit the same but the landlord- respondent's no. 5 counsel was refusing to accept the rent at that rate and was only willing to accept it at `6,000/-. This huge variation to claim rent led to the non-deposit and, therefore, a finding that the appellant was not willing to deposit and had denied the liability to pay the rent, in the said circumstances, would not be correct. A Division Bench of this Court, in Smt. Shanti Devi and another vs. Amar Singh and others, 2008 (1) PLR 503, while examining Section 9(1)(ii) and Section 14-A(i) of the Act, held that the said proviso would cast a duty upon the Assistant Collector to calculate the amount of rent so as to enable the tenant to satisfy the petition of the landlord, especially where the tenant disputed the claim on the ground that it was an exaggerated amount, which has been claimed. Reference was also made to the judgment of the Apex Court in Rakesh Wadhawan's case (supra). The relevant paragraphs in Shanti Devi's case (supra) read thus:-
"10..............An analysis of the above reproduced Gupta Shivani provisions shows that the proviso to Section 14-A(i) 2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 10 caste duty upon the Assistant Collector to calculate the amount of rent so as to enable the tenant to satisfy the petition of the landlord. This situation would arise if the tenant disputes the claim of the landlord by pleading, exaggerated rent or by saying that he had already paid the amount to the landlord. But, if he, by his conduct, does not even choose to controvert the factual aspect of the landlord's petition and rather chooses to frustrate it by not even filing a reply, then it amounts to subtle acquiescence.
xxx xxx xxx xxx
14. The protection of law and the benefit thereof can only be given to the persons, who satisfy the equitable conscience of Court. The provisions of law cannot be interpreted in a manner to as to delete justiciable content of a provision reward a person, who has flouted it willfully."
12. In similar circumstances, another Division Bench of this court in CWP No. 9032 of 2007 decided on 12.12.2008, Sukhram (deceased) represented by L.R.s and others vs. Financial Commissioner, Haryana and others, examined provisions of Sections 9(ii) and 14-A of the Act and allowed the writ petition setting aside the orders of ejectment and directed the Assistant Collector to calculate the arrears of rent, interest and cost so as to enable the petitioner-tenant to make a deposit as per the mandate of the proviso of Section 14-A(i) of the Act. The relevant observations read as under:-
Gupta Shivani2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 11
"In spite of the aforesaid submission advanced by the learned counsel for respondent Nos. 3 and 4 being attractive on first blush, we are satisfied, that there is no merit therein. The procedure for ejectment of tenants on account of non payment of rent is envisaged under section 14-A(i) whereas the procedure for recovery of rent, has separately and independently been envisaged under Section 14-A(ii) of the aforesaid Act. It is only a collective and harmonious construction of section 9 read with section 14-A that while determining the right of a landlord protection has also been afforded to a tenant who despite default pays rent within the mandate of the proviso to section 14-A(i) of the Punjab Security of Land Tenures Act, 1953, to save himself from ejectment. Since it is not a matter of dispute that Section 14-A(i) pertains only to the issue of ejectment of a tenant on account of non payment of rent, the only effective meaning that can be assigned thereto is, that the legislature considered it just and appropriate to afford liberty to an erring tenant, to overcome non payment of rent regularly without sufficient cause, by making payment thereof along with interest and costs on the first date of hearing or within 15 days of the date when the Assistant Collector Ist Grade, determined the arrears of rent, interest and costs. In view of the above, we find no merit in the instant contention of the learned Gupta Shivani 2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 12 counsel for the respondents."
13. That another aspect which is to be examined is that the authorities below did not discuss documents Exs. R5/A and R5/B wherein, the power of attorney of predecessor-in-interest of respondent no. 5 had given an affidavit dated 27.05.1980 that the rate of rent was only `100/- per year per acre, which has been appended as Annexure P-2 alongwith the writ petition.
14. Similarly, the statement had also been made before the revenue authorities in mutation proceedings by the earlier Mohatmin which also had not been considered, which reads as under:-
".....This land in question was given on rent by me to the respondents @ Rs.100/- as rent. When the Theka of the land was written down at that time, the land was kallar. The land was given for 5 years on lease. The lease was written three years earlier. Prior to this, I had given this land on lease to Gulab or Kassi. This lease was also written down, I have not brought the copy of the same. I used to take lease amount from the person to whom I had given the land on lease. There is no custom of issuing receipt of payment of batai and nor I had given the receipt. All those persons to whom I had given the land on lease are alive. I did not maintain any account of the batai.........
xx xx xx xx
RO & AC Sd/- A.C. Ist Grade
Karnal 24.1.83"
Gupta Shivani
2013.10.07 16:14
I attest to the accuracy and
integrity of this document
High Court Chandigarh
LPA No. 1433 of 2013 (O & M) 13
15. These two vital documents were thus ignored by the authorities below while holding that the rate of rent was `6000/-, as pleaded by respondent no. 5 in contrast to the defence taken that the rate of rent was `100/-. The authorities were under a bounden duty to examine the effect of the affidavit and the statement dated 24.01.1983 to assess the rate of rent and see if there was sufficient cause made out for non paying the rent regularly as per the provisions of Section 9(ii) of the Act and then give an opportunity to make the payment of arrears alongwith interest as provided under Section 14-A(i) of the Act. This failure by the authorities to assess the conflicting rate of rent has led to an irregularity and illegality which goes to the root of the matter and, therefore, the ejectment orders cannot be affirmed.
16. Accordingly, the present appeals are allowed and orders passed by the Assistant Collector on 09.11.2011 (Annexure P-4), the Collector on 24.01.2012 (Annexure P-6), the Commissioner on 06.07.2012 (Annexure P-
7) and the Financial Commissioner on 15.07.2013 (Annexure P-9) and the judgment of the learned Single Judge dated 30.07.2013 are set aside. The matter is remanded to the Assistant Collector Ist Grade to decide the issue afresh within a period of six months after taking into consideration the effect of the affidavit dated 27.05.1980 and the statement dated 24.01.1983 and then reassess the rent and give an opportunity to the appellant to pay the arrears, as provided under Section 14A(i) of the Act.
(G.S. Sandhawalia) Judge 16.09.2013 (Jasbir Singh) shivani Gupta Shivani Judge 2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No. 1433 of 2013 (O & M) 14 Gupta Shivani 2013.10.07 16:14 I attest to the accuracy and integrity of this document High Court Chandigarh