Punjab-Haryana High Court
Paramjit Singh And Others vs Financial Commissioner on 3 February, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla
Civil Writ Petition No. 4833 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH
Civil Writ Petition No.4833 of 1991
Date of Decision : 3rd February, 2012
Paramjit Singh and others Petitioners
Versus
Financial Commissioner, Haryana and others Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. H.S.Gill, Senior Advocate
with Mr. K.B.S.Mann, Advocate
for the petitioners.
Mr. D.Khanna, Additional Advocate General,
Haryana and Ms. Shruti Jain, Assistant Advocate
General, Haryana for respondent No.1.
Mr. Mani Ram Verma, Advocate
for LRs of respondent No.2.
RAJIVE BHALLA, J.
The petitioners pray for issuance of a writ in the nature of certiorari for quashing order dated 21.3.1990 passed by the Financial Commissioner, Haryana, whereby he has set aside orders passed by the Assistant Collector IInd Grade, Bawani Khera, the Collector, Bhiwani and the Commissioner, Hisar Division, Hisar.
Counsel for the petitioners submits that the Assistant Collector Ist Grade, Bhiwani, vide order dated 15.11.1985,ordered ejectment of respondent No.2 from the land in Rect No. 431, Killa No.2/3(1-0)9(8-
4) total measuring 9 Kanals 4 Marlas, situated in village Baliali, Tehsil Bawani Khera, District Bhiwani, by recording a finding that the latter is a habitual defaulter in payment of share of produce Civil Writ Petition No. 4833 of 1991 2 At the time of filing of the petition for ejectment, the share of produces for Kharif 1982 and 1983 was due. The order of ejectment was affirmed by the Collector, Bhiwani and the Commissioner, Hisar Division Hisar, but these orders have been set aside by the Financial Commissioner, Haryana on the ground that when a landlord takes resort to proceedings for recovery of rent, it does not raise a presumption that the tenant has failed to pay rent regularly in terms of Section 9(1)(ii) of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the "Act"). It is argued that the fact that a landlord has to resort to the proceedings in Form `N' of Section 14- A(ii) clearly establishes that the tenant is not paying rent regularly and is, therefore, liable to ejectment in terms of Section 9(1)(ii) of the Act. It is further submitted that as the proceedings under section 14-A(i) and Section 14-A(ii) of the Act are under separate circumstances and therefore, resorting by the landlord to initiate proceedings for recovery of rent, does not disentitle him to initiate proceedings for ejectment. The Financial Commissioner, has, in essence, held that if a landlord resorts to a proceeding under section 14-A(ii) of the Act, he shall not have resorted to proceedings under section 14-A(i) of the Act.
Counsel for the private respondents, on the other hand, submits that it is correct that the provisions of sections 14-A(i) and 14-A(ii) of the Act, are operative in different spheres. The provisions of Section 14-A(i) of the Act confers a right on a landlord to seek ejectment for non-payment of rent, whereas section 14-A(ii) of the Act, empowers a landlord to recover arrears of rent. Once the Civil Writ Petition No. 4833 of 1991 3 landlord has proceeded to file an application for recovery of rent and the tenant does not pay the rent so determined, he shall be ejected summarily by putting the landlord in possession of the land concerned. It is further submitted that though sections 14-A(i) and 14-A(ii) of the Act, provide separate remedies but the consequence of both the sections is ejectment of the tenant if he refuses to pay the rent so determined. It is argued that as the landlord, admittedly, filed application for recovery of rent and the rent, as assessed, was deposited, the fact that the landlord merely has to resort to seek for recovery of rent, would not lead to an inference that the tenant is liable for ejectment under section 14-A(i) of the Act. It is further submitted that finding recorded by the Financial Commissioner that if the landlord proceeds under section 14-A(ii) of the Act, proceedings under section 14-A(i) of the Act are rendered infructuous, is legally correct interpretation of provisions of the Act.
I have heard counsel for the parties and perused the impugned orders.
The question that arises for adjudication is the merit of the provisions of section 14-A(i) of the Act and whether resorting by landlord to the proceedings under section 14-A(ii) of the Act, renders proceedings initiated under section 14-A(i) of the Act as infructuous.
Section 14A of the Act reads as follows:
" 14-A. 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 Civil Writ Petition No. 4833 of 1991 4 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 Tenant Act, 1887 (XVI of 1887), shall not be affected;
(ii) a land-owner desiring to recover arrears of rent from a tenant shall apply in writing to the Assistant Collector, Second Grade, having jurisdiction, who shall thereupon send a notice, in the form prescribed, to the tenant either to deposit the rent or value thereof if payable in kind, or give proof of having paid it or of the fact that he is not liable to pay the whole or part of the rent, or of the fact of the landlord's refusal to receive the same or to give a receipt, within the period specified in the notice. Where, after summary determination, as provided for in sub-s.(2) of S.10 of this Act, the Assistant Collector finds that the tenant has not paid or deposited the rent, he shall eject the tenant summarily and put the land-owner in possession of the land concerned;
(iii) (a) if a land owner refuses to accept rent from his tenant or demand rent in excess of what he is entitled to under this Act, or refuses to give a receipt, the tenant may in writing inform the Assistant Collector, second Grade, Civil Writ Petition No. 4833 of 1991 5 having jurisdiction of the fact;
(b) on receiving such application the Assistant Collector shall by a written notice require the landlord to accept the rent payable in accordance with this Act, or to give a receipt as the case may be, or both, within 60 days of the receipt of the notice."
Section 14-A(i) of the Act empowers a land-owner desiring to get ejected a tenant under this Act has to apply in writing to the Assistant Collector, Ist Grade, who shall proceed in accordance with the procedure prescribed by sub-section (2) of Section 10 of the Act to decide the application, which provides that the Assistant Collector shall, upon receipt of an application, determine the dispute summarily, after giving a notice in writing to the parties and a reasonable opportunity of being heard. The grounds for ejectment are set out in section 9 of the Act. Sub clause (ii) of sub-section (1) of Section 9 of the Act provides for ejectment of a tenant if he fails to pay rent regularly without sufficient cause. It is, therefore, apparent that if a tenant fails to pay rent regularly without sufficient cause, a landlord is entitled to file an application under section 14-A(i) of the Act, praying that the tenant be ejected as he has failed to pay rent regularly without sufficient cause.
Section 14-A(ii) of the Act, while conferring a right upon a landlord desiring to recover arrears of rent, apart providing to apply to the Assistant Collector IInd Grade, for recovery of rent also provides that if a tenant does not pay or deposit the rent as determined in accordance with the procedure prescribed by sub- Civil Writ Petition No. 4833 of 1991 6 section (2) of Section 10 of the Act, the Assistant Collector shall eject the tenant summarily and put the land-owner in possession of the land. It is, therefore, apparent that section 14-A(i) of the Act prescribes a procedure for ejectment, whereas section 14-A(ii) of the Act, provides a procedure for recovery of arrears of rent and also for ejectment, if the amount of rent, so determined, is not paid. The mere fact that a landlord may have chosen to resort to section 14- A(ii) of the Act, for recovery of rent, in my considered opinion, does not entitle him to move an application under section 14-A(i) of the Act, for the same harvest, as a subject matter of proceedings under section 14-A(ii) of the Act. The Act provides two remedies to the landlord. The first being under section 14-A(i) of the Act, for ejectment without any plea for recovery of rent and the second being under section 14-A(ii) of the Act, for recovery of rent and ejectment in case the amount determined is not paid. Sections 14-A(i) and 14- A(ii) of the Act, in essence, provide for ejectment of a tenant though in the latter provision, the landlord may pray for recovery of rent and ejectment shall only result summarily if a tenant does not pay the rent determined in accordance with the procedure prescribed by sub-section (2) of Section 10 of the Act.
The questions that were framed by the Financial Commissioner are as follows:
"(i) Does the fact of recovery of rent by resort to proceedings under Form `N' of section 14-A(ii) for some crops amounts to non-payment of rent regularly in terms of section 9 sub-section (1) clause (ii) of Punjab Security Civil Writ Petition No. 4833 of 1991 7 of Land Tenures Act.
(ii) Can the landlord resort to proceedings for ejectment of tenant for tenant's failure to make payment of rent regularly without sufficient cause while simultaneously proceeding under section 14-A(ii) for recovery of rent by way of notice in Form `N'."
After considering the statutory provisions of Section 14-A of the Act, the Financial Commissioner held that section 14-A(i) of the Act prescribes a procedure for a land-owner desiring to get ejected a tenant under this Act. The relevant extract from the order dated 21.3.1990 passed by the Financial Commissioner reads as follows:
"....Section 14-A(i) prescribes the procedure for landowner desiring to eject a tenant under this act. Procedure prescribed is summary procedure as per section (2) of the Act and the grounds are given in Section 9(1). In these proceedings if the tenant takes the argument that the landowner has been refusing to receive the rent, the onus will shift on the tenant to prove it in view of the existence of section 14-A(iii) since the tenant had the option to approach the court to deposit the rent if landlord was not willing to accept it, his defence would become weak though not barred. Conversely, if the tenant promptly makes the payment on receiving a notice under section 14-A(ii), the land owner will lose the ground that the tenant is a defaulter. Since under this section tenant has Civil Writ Petition No. 4833 of 1991 8 to pay up the rent immediately there is no hesitation or default attached to him...."
After recording the aforementioned finding, the Financial Commissioner held that the mere fact of recovery of rent by resort to proceedings under section 14-A(ii) of the Act, cannot lead to an inference, a tenant has failed to pay rent regularly in terms of sub clause (ii) of sub-section (1) of Section 9 of the Act.
I have considered the provisions of section 14 read with section 9(1)(ii) of the Act and tend to agree with the conclusion recorded by the Financial Commissioner. A landlord may resort to either proceedings out of proceedings under section 14-A(i) of the Act or under section 14-A(ii) of the Act. Proceedings under section 14-A(i) require a landlord to prima facie establish non-payment of rent or share in the crop produce whereas in proceedings under section 14-A(ii) of the Act if a tenant raises a plea that the landlord has refused to receive the rent, the onus shifts on the tenant to prove this fact. Conversely, if a landlord resorts to an application under section 14-A(ii) of the Act and the tenant promptly makes payment, a landlord will lose the ground that the tenant is at fault. Section 14- A(ii) of the Act confers a statutory right upon a tenant to pay the rent in accordance with summarily determination made by the Collector in accordance with section 10(2) of the Act. The conferment of a statutory right to deposit rent in accordance with the rent so determined cannot, whether the landlord has resorted to provisions of section 14-A(ii) of the Act , be said to be filed within the mischief of the expression "fails to pay rent regularly without sufficient cause" Civil Writ Petition No. 4833 of 1991 9
appearing in section 9(1)(ii) of the Act. If an application or repeated applications under section 14-A(ii) of the Act was/were filed within the mischief of the expression used in section 9(1)(ii) of the Act, the right conferred upon a tenant by section 14-A(ii) of the Act, to pay the rent so determined would be rendered otis and meaningless.
The argument raised by the respondents based upon a judgment of the Hon'ble Supreme Court in Mrs. Raj Kanta versus The Financial Commissioner, Punjab and another, AIR 1980 Supreme Court 1464, that even a single unexplained default is sufficient to order for ejectment of a tenant, in my considered opinion, has not applicability to the present case. The Hon'ble Supreme Court has seized of the interpretation of the expression " fails to pay rent regularly without sufficient cause" appearing in section 9(1)(ii) of the Act and therefore held that there was no warrant for the proposition for a single default, cannot invite ejectment. The situation in the present case is entirely different. The judgment in Ram Chand versus the Financial Commissioner, Revenue, Haryana, 1973 P.L.J. 576 applies to a case relating to default in payment of rent and, therefore, the question in hand was neither considered nor adjudicated.
In view of what has been stated here-in-above, I find no reason to interfere with the order dated 21.3.1990 passed by the Financial Commissioner, Haryana. The writ petition is, consequently, dismissed with no orders as to costs.
3rd February, 2012 ( RAJIVE BHALLA ) VK JUDGE