Subhash Chand Vs State
of Haryana & Ors.
JUDGMENT
A. K. PATNAIK, J.
This is an appeal
against the order dated 04.03.2002 of the Division Bench of the High Court of
Punjab & Haryana dismissing Civil Writ Petition No.3733 of 2002. During the
pendency of this appeal respondent No.4 Ramesh Chand Girdhar died on 09.12.2009
and I.A. No.2 of 2010 has been filed to bring on record his legal heirs namely,
Smt. Kiran Girdhar (wife), Shri Rajeev Girdhar (son), Shri Sandeep Girdhar
(son) and Smt. Ruchi (daughter). This I.A. No. 2 of2010 is allowed. I.A. Nos. 5
and 6 of 2010 have been filed by appellants claiming to be brothers and sisters
of the appellant and they have prayed to be impleaded in the appeal. As the appellant
represents the interest of the appellants, if any, in the suit property, we
reject the prayers in I.A. Nos.5 and 6 of2010.2.
The facts of this
case very briefly are that the mother of the appellant filed an application for
recovery of rent and ejectment of the respondent No.4 before the Assistant Collector,
First Grade, Ballabgarh, Faridabad. She stated in the application that she was
the owner of agricultural land Rectangle No.49, Killa No.8 and 15 measuring 16
Kanals at Mauja Baselwa Tehsil in district Faridabad and the respondent No.4
was a tenant in respect of this land and the respondent No.4 had not paid rent
for the land for five years from Kharif 1977 to Rabbi 1982. She prayed that the
respondent No.4 be evicted from the land and a decree for recovery of rent for
3 years from Kharif 1979 to Rabbi 1982totalling to Rs.63/- be passed.
The Assistant
Collector issued summons to the respondent No.4 and the respondent No.4filed a
written statement in which he pleaded that he had filed a suit for declaration
of occupancy rights in respect of the suit land which had been decreed in his
favour and therefore he was not liable to pay rent. After considering the
evidence led by the parties and after hearing the arguments of learned counsel
for the parties, the Assistant Collector in his order dated 10.03.1995 found
that the respondent No.4 had been declared occupancy tenant by the Assistant
Collector by order dated 07.04.1981 but on appeal being filed by the mother of the
appellant, the Collector had remanded the case to the Assistant Collector by
order dated 10.11.1981 and there after the Assistant Collector again declared
the respondent No.4 as the occupancy tenant by order dated 12.11.1982, but on appeal
the Collector set aside the order dated 12.11.1982 and held that the respondent
No.4 had ceased to be an occupancy tenant by order dated 15.06.1983.
The Assistant
Collector further found that the respondent No.4 carried an appeal to the
Commissioner who dismissed the appeal by order dated31.01.1986 and the
respondent No.4 thereafter filed a revision which was also dismissed by the
Financial Commissioner by order dated 22.07.1986. In his order dated
10.03.1995,however, the Assistant Collector held that as no notice in Form `N'
had been served on the respondent No.4 and the rent had been paid by the
respondent No.4 on 05.06.1986 the application of the mother of the appellant
was notmaintainable.
The mother of the
appellant then filed an appeal before the Collector, Faridabad, who dismissed
the appeal. She filed a revision before the Commissioner, Gurgaon Division and
the Commissioner in his order dated 18.02.2000 held that if the suit had been
filed under the Punjab Security of Land Tenures Act, 1953 (for short `the 1953
Act') then notice in Form `N' was required to be given but as the suit had
actually been filed under Section 77(3) of the Punjab Tenancy Act, no such
notice in Form `N' was required to be given. The Commissioner further held that
it was clear from the records of the Assistant Collector, First Grade, Ballabgarh,
Faridabad, that the respondent No.4 had admitted in his written statement that
he had not paid the rent and had deposited the rent after the suit was filed by
the mother of the appellant for recovery of rent and for eviction and
accordingly set aside the orders of the Assistant Collector and the Collector
by his order dated18.02.2000.
The respondent No.4
filed a revision before the Financial Commissioner, Haryana, and the Financial
Commissioner by his order dated 14.08.2001 allowed the revision and restored
the order of the Collector. The appellant challenged the order of the Financial
Commissioner before the High Court in Civil Writ Petition No.3733 of 2002 and
the High Court dismissed the writ petition by the impugned order.4. Mr. Manoj
Swarup, learned counsel for the appellant, submitted that Section 9(1)(ii) of
the 1953 Act provides that a tenant is liable to be ejected if he "fails
to pay rent regularly without sufficient cause." He submitted that in
Mrs. RajKanta v. The Financial Commissioner, Punjab and Others[(1980) 3 SCC
589] this Court has held that the words "fails to pay rent regularly
without sufficient cause" in Section 9(1)(ii)mean that the tenant should
pay rent punctually and consistently without any break or breach and even a
single default in the payment of rent committed by the tenant would make him
liable for eviction under Section 9 (1)(ii) of the 1953Act.
He argued that in the
present case there was a clear default on the part of the respondent No.4 to
pay rent for the period from Kharif 1979 to Rabbi 1986 and therefore he was liable
to be evicted under Section 9 (1) (ii) of the 1953 Act. He contended that under
Section 14-A (i) a landowner desiring to eject a tenant under the Act can apply
to the Assistant Collector, First Grade and the Assistant Collector will thereafter
follow the summary procedure in Section 10(2) of the 1953 Act and eject a
tenant. He vehemently argued that a plain reading of Section 14-A(i) would show
that notice in Form `N' was not required to be served where the application was
for ejectment on any of the grounds mentioned in Section9(1) of the 1953 Act.
He submitted that since the application of the mother of the appellant before
the Assistant Collector, First Grade, was for ejectment for non-payment of
rent, notice in Form `N' under Section 14-A(ii) of the 1953 Act was not required
to be sent to the tenant and therefore the Assistant Collector, the Collector,
the Financial Commissioner and the High Court have taken an erroneous view that
the application was liable to be rejected because notice in Form `N' had not been
served on the tenant.
He submitted that
this a fit case in which this Court should set aside the impugned order of the High
Court and direct eviction of the respondent No.4 on the ground that he has
failed to pay rent for a period of five years.5. In reply, Mr. R.F. Nariman,
learned senior counsel appearing for the legal heirs of respondent No.4,
submitted that a plain reading of the application filed by the mother of the appellant
before the Assistant Collector would show that it was an application for
recovery of arrears of rent for the years1978-1980, 1980-1981, 1981-1982
amounting to Rs.63/- and Section 14-A(ii) of the 1953 Act read with Rule 22 of
the 1956Rules made it clear that a notice in Form `N' had to be served on the
tenant to deposit the rent and it is only on failure on the part of the tenant
to deposit the rent that the tenant is liable to be evicted by the Assistant
Collector. Mr. Nariman argued that the Assistant Collector, the Collector and
the Financial Commissioner were, therefore, right in coming to the conclusion
that as no notice in Form `N' for payment of arrears of rent had been served on
the respondent No.4, the application for eviction of the respondent No.4 for
non-payment of rent was not maintainable. In support of this contention, he
cited the decision of this Court in Kapur ChandJain v. B. S. Grewal & Ors.
[(1965) 2 SCR 36].
He further submitted
that in any case a tenant will have to be given a reasonable opportunity to
clear arrears of rent, if any, before he is evicted for non-payment of rent. He
explained that in this case the respondent No.4 had taken a plea in his written
statement filed before the Assistant Collector that he had not been paying rent
because his occupancy rights in respect of the land had been declared by the
Assistant Collector. He submitted that as soon as the respondent No.4 found
that his claim for occupancy rights in respect of the land was not acceptable
to the authorities, he deposited the rent before the Assistant Collector,
Second Grade, Faridabad.
He submitted that the
respondent No.4 therefore had sufficient cause for not paying the rent earlier
and he was not liable to be evicted under Section 9(1)(ii) of the 1953 Act. He
submitted that the mother of the appellant had actually filed a suit under
Section77 of the Punjab Tenancy Act, 1887 and the Assistant Collector had also
recorded oral evidence of witnesses and had not followed the summary procedure
laid down under Section10(2) of the 1953 Act. He submitted that under Section39(1)(c)
of the Punjab Tenancy Act, 1887 a tenant could be evicted for failure to pay
rent only when a decree for an arrear of rent in respect of his tenancy had
been passed against him and such decree had remained unsatisfied. He submitted
that in the present case there is no decree for arrear of rent in respect of
the tenancy of the respondent No.4 and, therefore, he was not liable to be
evicted under Section 39 of the Punjab Tenancy Act, 1887.6. Mr. Swarup, learned
counsel for the appellant, however, submitted that the Assistant Collector by recording
oral evidence adduced on behalf of the parties had not caused any prejudice to
the respondent No.4. He cited the decision of the Punjab and Haryana High Court
in Manohar & Ors. v. Financial Commissioner, Haryana & Ors. [2000 (2)
PLJ 460] in which a Division Bench of the High Court has held that by following
a lengthy procedure of framing issues, recording evidence and considering the
factual and legal aspects, a tenant does not suffer any prejudice whatsoever,
rather he has a better opportunity to prove his case.7. Sections 9(1)(ii),
10(2) and 14-A of the 1953 Act, on which the counsel for the parties have
relied upon, are quoted here in below: "9(1)(ii) - Liability of tenant to
be ejected.--(1)
Notwithstanding
anything contained in any other law for the time being in force, no land-owner other
than a land-owner, who is a member of the Armed Forces of the Union or a Non-Resident
Indian shall be competent to eject a tenant except when such tenant--
(i)
...................................................................
(ii)
fails
to pay rent regularly without sufficient cause. ...................................................................
10(2) - Restoration
of tenant ejected after the 15th of August, 1947.- (1)
................................................................... (2) On
receipt of an application the Assistant Collector shall, after giving to the
parties notice in writing and a reasonable opportunity to be heard, determine
the dispute summarily and shall keep a memorandum of evidence and a gist of
his final order with brief reasons there for. 1 14-A. Procedure for ejectment
and recovery of 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 landowner 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 tenant's rights to compensation and acquisition of occupancy rights, if
any, under the Punjab Tenancy Act, 1887 ( XVI of 1887), shall not be affected;(ii)
a landowner 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-section (2) of Section 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 landowner in
possession of the land concerned;(iii) (a) If a landowner 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, 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 maybe, or both, within 60 days of the receipt of the notice."8. The
first question which arises for decision in this case whether the Commissioner
who decided the revision in favour of the appellant was right in holding that
the suit for ejectment of the respondent No.4 was under Section 77(3) of the
Punjab Tenancy Act. Clause (i) of Section 14-A makes it clear that notwithstanding
anything to the contrary contained in any other law for the time being in
force, where the land-owner desires to eject a tenant under the Act,
He has to apply in writing
to the Assistant Collector, First Grade, having jurisdiction, who shall
thereafter proceed as provided for in Section 10(2) of the 1953 Act. Clause
(ii) of Section 14-Astates that notwithstanding anything to the contrary contained
in any other law for the time being in force, where a land-owner desires to
recover arrears of rent from a tenant he has to apply in writing to the
Assistant Collector, Second Grade, who shall thereupon send a notice in the form
prescribed, to the tenant either to deposit the rent or value thereof 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 and after summary determination in accordance with
Section10(2) of the Act if 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. Hence, for ejectment of a
tenant under the 1953Act or for recovery of arrears of rent from a tenant, the procedure
laid down in Section 14-A read with Section 10(2) of the Act has to be
followed.
The application of
the mother of the appellant, in the present case, was for ejectment of the tenant
and for recovery of arrears of rent and was really an application under Section
14-A of the 1953 Act and not a suit under Section 77(3) of the Punjab Tenancy
Act, 1887. A reading of Section 10(2) of the 1953 Act shows that under the summary
procedure contemplated therein the Assistant Collector is required to give
notice to the parties in writing and reasonable opportunity to be heard and he
is required to determine the dispute summarily and to keep a memorandum of
evidence and a gist of a final order with brief reasons there for. On an
examination of the records of this case, we also find that the Assistant
Collector has followed the procedure laid down in Section 10(2) of the 1953
Act.
Hence, the
Commissioner was not right in holding that the mother of the appellant had
filed a suit under Section 77(3) of the Punjab Tenancy Act.9. The real question
which we are called upon to decide in this case is whether the respondent No.4
was liable to be ejected under Section 9(1)(ii) of the 1953 Act. The language
of clause (ii) of sub-section (1) of Section 9 would show that the tenant is
liable to be ejected if he fails to pay rent regularly` without sufficient
cause'. In Mrs. Raj Kanta v. The Financial Commissioner, Punjab and Others
(supra), this Court, while interpreting Section 9(1)(ii) of the 1953 Act,
observed: "We might add at the risk of repetition that the use of the
words `without sufficient cause' clearly indicates that the intention of the
legislature was that in order to escape ejectment, the tenant must at least be
regular in payment of the rent and if he 1 wants to get rid of the
consequences of his default, he must prove sufficient cause. ...............
"Thus, where the
tenant is able to prove that he had sufficient cause for not paying the rent
for any period, he can get rid of the consequence of ejectment provided in
Section 9(1)(ii) of the1953 Act.10. We find that in this case in reply to the
application of the mother of the appellant for recovery of arrears of rent and for
ejectment filed before the Assistant Collector, First Grade, the respondent
No.4 has taken a plea in the written statement that his suit for declaration of
occupancy rights in respect of the land had been decreed in his favour by the Assistant
Collector and he was not liable to pay rent for the land as a tenant. The
Assistant Collector had, in fact, decreed the suit of the respondent No.4 for
occupancy rights on 07.04.1981. On appeal by the mother of the appellant, the
Collector had remanded the case to the Assistant Collector but the Assistant
Collector again decreed the suit on 12.11.1982.
The mother of the appellant
filed an appeal before the Collector who allowed the appeal on 14.06.1983.
Thereafter, the respondent No.4filed an appeal before the Commissioner, Ambala
Division, which was dismissed on 31.01.1986. The respondent No.4then moved the
Financial Commissioner in revision and the Financial Commissioner dismissed the
revision on22.07.1986. In the meanwhile, the respondent No.4deposited the rent
in the Treasury vide Challan dated05.06.1986.
These findings of
facts in the order of the Assistant Collector, which have not been disturbed by
the Collector and the Financial Commissioner, clearly establish that the
respondent No.4 did not pay rent for the land a she was pursuing his claim of
occupancy rights in respect of the land and if his claim was finally allowed he
would not be liable for rent. The respondent No.4 had, therefore, sufficient
cause for not paying the rent for the land and was not liable to be evicted
under Section 9(1)(ii) of the1953 Act. As we have held that the respondent No.4
was not liable to be ejected, it is not necessary for us to decide whether
notice in Form `N' was required to be given to the respondent No.4 under
Section 14-A(ii) of the 1953 Act before ejectment of the respondent No.4.11.We
therefore do not find any merit in this appeal and we accordingly dismiss the
same. No costs.
.............................J.
(R. V. Raveendran)
.............................J.
(A. K. Patnaik)
New
Delhi,
December
16, 2010.
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