Punjab-Haryana High Court
Hari Singh Son Of Shri Daya Ram vs Financial Commissioner on 21 August, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.20737 of 2006 (O&M)
Date of decision: 21.08.2013
Hari Singh son of Shri Daya Ram, resident of Village Fatehpur,
Tehsil Jagadhri, District Yamuna Nagar, and others.
...Petitioners.
versus
Financial Commissioner, Haryana, Chandigarh, and others.
....Respondents
& Civil Writ Petition Nos.20806, 20815 to 20819 of 2006,
4891, 5634, 5859, 5878, 5852, 5861 of 2007 (O&M)
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Rajinder Goyal, Advocate and
Mr. R.K. Bansal, Advocate,
for the petitioners in CWP Nos.20737, 20816, 20817
and 20819 of 2006.
Mr. Jitender S. Chahal, Advocate,
for the petitioners in CWP Nos.5634, 5859, 5861, 5878
and 5852 of 2007.
Mr. Harish Rathee, Senior DAG, Haryana.
Mr. Robin Dutt, Advocate,
for respondent No.5 in CWP No.4891 of 2007;
for respondents 5 and 6 in CWP Nos. 5634, 5859, 5861,
5878 and 5852 of 2007;
for respondents 5 to 9 in CWP Nos.20806, 20815,
20816, 20817, 20818, 20819 of 2006,
Mr. Karan Bhardwaj, Advocate,
for the petitioner in CWP No.4891 of 2007.
Mr. Vimal Kumar Gupta, Advocate,
for the petitioners in CWP Nos.20806, 20815, 20818 of
2006.
----
Kumar Sanjeev
2013.08.29 10:20
I attest to the accuracy and
integrity of this document
chandigarh
Civil Writ Petition No.20737 of 2006 (O&M) -2-
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. (Oral)
1. All the writ petitions are connected and they relate to the same issue of the validity of the order passed by the authorities constituted under the Punjab Security of Land Tenures Act. The petitions had been filed by the respondents claiming themselves to be the landlords and seeking for ejectment of the various petitioners, who are all admittedly tenants of the properties on the ground that they had refused to execute qabuliats and hence, they were liable to be ejected under Section 9(1)(vii) of the Punjab Security of Land Tenures Act. The petitions had been filed before the Assistant Collector, Ist Grade, Yamuna Nagar. The contention by the landlords was that they had been inducted as tenants and recorded as gair marusis in the village records on a yearly rent of ` 26.25 per acre. The leases had commenced before 1947 and the contentions of the landlords were that the amount was grossly low, inequitable and that the batai at not less than 1/3rd share shall be fixed and on the failure to execute a lease for the said rent, they should be ordered to be evicted in the manner contemplated under the relevant provisions of the Punjab Security of Land Tenures Act. The contentions of the landlords were accepted and the authorities passed an order directing Kumar Sanjeev 2013.08.29 10:20 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.20737 of 2006 (O&M) -3- the petitioners to pay 1/3rd batai and directing the petitioners to make the qabuliats to the said effect under the provisions of the Act. This order was confirmed at the successive tiers of adjudicatory bodies under the Act. These orders are challenged in the writ petitions at the instance of all the tenants.
2. The learned counsel for the petitioners would point out to the prayer in the petitions was for a direction for increase of rent or chakota to be changed 1/3rd batai and if the tenants did not accept the same by execution of qabuliatnama, they should be directed to be evicted from the lands in dispute. The counsel would argue that the provisions under Section 9(1)(vii) provides only for an eviction on refusal by the tenants to execute the qabuliatnama and makes no provision for determination of rent if it had not been already agreed or make provision for increase of rent from the already determined amount of `26.25 per acre. The counsel would state that they are governed by independent provisions before a different authority under the Punjab Tenancy Act. Section 22 of the Punjab Tenancy Act allows for enhancement of cash rents of occupancy tenants and the procedure for carrying out such an enhancement is by institution of a suit before a Revenue Court in the manner provided under Section 24 of the Act. The Revenue Court shall exercise the power under Section 77(2)(a) as a "first group" tenant for enhancement or reduction of rent and without following the procedure mentioned Kumar Sanjeev 2013.08.29 10:20 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.20737 of 2006 (O&M) -4- under the Act, a summary proceeding under the Punjab Security of Land Tenures Act could not have been initiated.
3. The learned counsel for the landlords would contend that even in the absence of petition under the Punjab Tenancy Act, the Punjab Security of Land Tenures Act itself contains a provision through Section 12 that sets out the maximum amount that shall be payable by a tenant for any land held by him. This must be understood as the rent which could be fixed by the authority by a direction that such a rent as provided under Section 12 to be paid in a proceeding under the Punjab Security of Land Tenures Act itself. According to him, it shall be unnecessary to file independent petition before the Revenue Court in the manner contemplated under the Punjab Tenancy Act. The counsel would refer me to the Division Bench ruling of this Court in Vasandha Ram and another Versus The Sate of Haryana and others-1982 PLJ 452 that dealt with the situation of a landlord applying for a direction for execution of the qabuliatnama through a petition filed under the Punjab Security of Land Tenures Act. In that case, the landlord had contended for a direction for execution at ` 500 per acre per year under Rule 9 of the Punjab Security of Land Tenures Rules and at the time of trial, he gave up a plea for ` 500/- per acre and sought for a contention that it shall be at the rate of 1/3rd batai. This prayer had been accepted and the tenants had preferred an appeal against Kumar Sanjeev 2013.08.29 10:20 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.20737 of 2006 (O&M) -5- the order and further revision to the Commissioner and Financial Commissioner met with the same result. Before the High Court, it was contended on behalf of the tenants, as it is contended now, that the Special Collector will have had no jurisdiction to get qabuliatnama executed for 1/3rd batai and that the procedure under the Security of Land Tenures Act did not contain any express power for determination of rent. The Court rejected the contention of the tenant and upheld the order already passed by the Special Collector on a finding that the order under Section 9 empowering him to eject a tenant for non-execution of qabuliatnama must be read constituting an inherent power to fix the rent also at a rent not exceeding 1/3rd batai.
4. The counsel for the petitioners would contend that there existed no such power for the Assistant Collector to fix rent and the Division Bench has not gone into the provisions of the Punjab Tenancy Act with reference to the particular provisions which are cited before me and the counsel would also point out that the Revenue Court constituted under Section 77(4) shall be Collector and the petition under the Punjab Security of Land Tenure Act as before the Assistant Collector did not have the power to alter the rent. Though I see the strength of the argument that the Assistant Collector under the Punjab Security of Land Tenures Act would not have had the jurisdiction to determine the rent as the Revenue Court Kumar Sanjeev 2013.08.29 10:20 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.20737 of 2006 (O&M) -6- under Section 77, I feel myself constrained to follow the decision of the Division Bench which was actually rejecting a plea of the tenant that was urged in the same fashion as it is done now. I cannot discard the strength of the reasoning of Division Bench by the only fact that there is no reference to the provision of the Punjab Tenancy Act in the judgment. The Division Bench was actually considering the power of the Special Collector in determining a petition for ejectment for refusal to execute a qabuliatnama and in that context, it said that such a power must be understood as also including inherent power to determine the rent. The law stated by the Division Bench finds expressed through paras 4 and 5 and it will be appropriate for me to reproduce the same, for, it squarely and comprehensively answers the queries raised by the tenants before me:-
"4. The sole contention of the learned counsel for the petitioners is that the Special Collector had no jurisdiction to get the qabuliyat Nama executed at one-
third batai. We have not been impressed by this argument. In form 'C' which is prescribed for execution of Qabuliyat Nama, the quantum of rent has to be mentioned. Under Section 12 of the Punjab Security of Land Tenures Act the land-owner can recover one-third batai, or the rent customary in the area whichever is less. Kumar Sanjeev 2013.08.29 10:20 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.20737 of 2006 (O&M) -7- So the Qabuliyat Nama cannot be for more than the rent provided under Section 12 of the Act. In the present case, the Qabuliyat Nama is fully in accordance with the provisions of the Section 12 of the Act. The Special Collector has given a finding of fact which has been affirmed by the superior authorities that the customary rent was one-third batai.
5. The argument of the learned counsel for the petitioner that in proceedings under Section 9(1)(vii) of the Act, the Collector can only order the tenant to execute a Qabuliyat Nama without denoting the rate of rent; that this Qabuliyat Nama has to clearly mention that the rate of rent shall be in accordance with the provisions of Section 12 of the Act which will be determined in separate proceedings, has not commenced itself to us. The determination of rate of rent on which the Qabuliyat Nama has to be executed is inherent in the provisions of section 9(i)(vii) of the Act. Unless the amount of rent is determined, the Special Collector cannot ask the tenant to execute the Qabuliyat Nama at an appropriate rate of rent. In the absence of the mention of the rate of rent, the purpose of execution of the Qabuliyat Nama will be frustrated. To require the Kumar Sanjeev 2013.08.29 10:20 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.20737 of 2006 (O&M) -8- parties to file separate proceedings for execution of the Qabuliyat Nama, and for determining the rent which is to be paid by the tenant will be clearly against the public policy. Multiplicity of the proceedings has to be eschewed."
5. The direction given by the Assistant Collector for 1/3rd batai shall, under the circumstances, was perfectly justified.
6. The counsel for the petitioners has a grievance that the landlord was giving evidence to the effect that the rent in the village was ` 10,000 to `15,000/- per acre per year, but the Court has merely provided for chakota as 1/3rd batai. It ought to have seen that 1/3rd batai was still more than the rent of `10,000/- to `15,000/- in the village which is the customary rent. I cannot accept the argument in the manner it is made by the counsel for the tenants, since the landlord was only attempting to show that `26.25 per acre was grossly low and was not anyway near to `10,000 to `15,000/- which is normally fetched in the village. It did not refer to any customary rent. A custom is a manner of ascertaining a rent which is different as regards either the cash rent or the share of the produce which the market fetched. There was no specific evidence anywhere that there was any customary rent which was less than 1/3rd batai or which was less than `10,000/15,000/-. Therefore, when the Collector was discarding the rent payable at `26.25 as inequitable Kumar Sanjeev 2013.08.29 10:20 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.20737 of 2006 (O&M) -9- and low, it was not required to state any more than fixing 1/3rd as batai, for, that is the maximum rent payable under Section 12 of the Punjab Security of Land Tenures Act. Unless there was evidence that the customary amount was less than 1/3rd, there was no need for the Collector to have undertaken any further enquiry and provided for anything which was less than the rent provided under Section
12. I do not find the contention made as proof of existence of any particular custom as prevailing in the village that settled for a rent to be less than 1/3rd batai.
7. The orders passed are, therefore, maintained and all the writ petitions are dismissed.
(K.KANNAN) JUDGE 21.08.2013 sanjeev Kumar Sanjeev 2013.08.29 10:20 I attest to the accuracy and integrity of this document chandigarh