Ajit Kumar Jain vs The State of Haryana and Others

Ajay Kumar Mittal, J.—In this writ petition filed under Articles 226/227 of the Constitution of India, challenge is to the orders dated 8.8.1983 (Annexure P-4) passed by the Commissioner, Hisar Division, Hisar recommending the case to the Financial Commissioner (Revenue) for upsetting the orders dated 27.12.1982 and 1.2.1983 passed by the authorities below and to grant time to the tenant for depositing the amount of expenses, and dated 24.4.1984 (Annexure P-5) passed by the Financial Commissioner, Haryana, Chandigarh whereby he had accepted the recommendation made by the Commissioner and set aside the order dated 27.12.1982 passed by the Assistant Collector, 1st Grade ordering ejectment of respondent No. 5.

The facts of the case are that the petitioner was owner and landlord of the land measuring 23 kanals 13 marlas, situated in Village Bishanpura, Tehsil and District Jind, on which respondent No. 5 was a tenant on payment of rent at the rate of 1/3rd batai of the total produce. The petitioner filed a suit before respondent No. 4 u/s 7 of the Pepsu Tenancy and Agricultural Lands Act, 1955 (for brevity "the Act") for recovery of rent/batai against respondent No. 5 who vide order dated 25.5.1981 passed a decree of Rs. 2780.45 P against respondent No. 5 and granted him six months'' time to deposit the same. It was pleaded that respondent No. 4 while passing the above said order inadvertently could not include the batai for the kharif 1978 and the petitioner being aggrieved went in appeal before the Collector, Jind (respondent No. 3) which accepted the appeal and remanded the case to respondent No. 4 for recording a finding with regard to batai for kharif, 1978 and also the non-awarding of the costs of the case to the petitioner. Thereupon, respondent No. 4 vide order dated 31.5.1982 passed a decree in favour of the petitioner for Rs. 268.67p on account of batai for kharif, 1978 and Rs. 911.50p as costs and directed that the decretal amount would be paid within six months and in case of failure, the tenant would be ejected in accordance with law. On failure of respondent No. 5 to deposit the decretal amount within that period of six months, the petitioner moved an execution application and at the same time, respondent No. 5-tenant moved an application u/s 148 of the CPC (for short "the Code") for extension of the time limit fixed for the deposit of the decretal amount before respondent No. 4. According to the said application (Annexure P-1), the only reason stated by respondent No. 4 for extension of time was that the certified copy of the decree dated 31.5.1982 was not made available to him and, therefore, he could not deposit the amount in time.Respondent No. 4 vide order dated 27.12.1982 rejected the application of respondent No. 5 holding that no legal provision had been shown under which the limitation for deposit of the decretal amount could be extended. Feeling aggrieved, respondent No. 5 approached the Collector, Jind, who vide order dated 1.2.1983 dismissed the appeal. Thereafter, respondent No. 5 approached the Commissioner, Hisar Division, Hisar by way of revision who vide order dated 8.8.1983 recommended the revision to the Financial Commissioner (Revenue), Haryana, Chandigarh for upsetting the above said orders dated 27.12.1982 and 1.2.1983 passed by respondents No. 3 and 4 respectively and also made a reference to grant time to respondent No. 5-tenant to deposit the decretal amount beyond the statutory period of six months. The Financial Commissioner, Haryana-respondent No. 1 vide order dated 24.4.1984 accepted the recommendations made by respondent No. 2 and set aside the order dated 27.12.1982 passed by respondent No. 4 regarding ejectment of respondent No. 5. Respondent No. 1 further observed that the period spent in the litigation may be excluded while reckoning the period prescribed for depositing the amount due. Hence, the present civil writ petition.

I have heard the learned Counsel for the parties and perused the record with their assistance.

According to the learned Counsel for the petitioner, the time for deposit of rent could not be extended as there is no power with the authority to enlarge the time. Relying upon the judgments of this Court in Gurmej Singh and Ors. v. Financial Commissioner and Ors. (1981) 83 P.L.R. 168 (F.B.) and Charan Dass v. Financial Commissioner, Haryana and Anr. (1997) 137 P.L.R. 37, it was argued by the learned Counsel for the petitioner that the orders under challenge are legally unsustainable being contrary to established legal position. He further relied upon Full Bench of Allahabad High Court in Jagjit Singh and Others Vs. Sankatha Singh and Another, and a Division Bench of Kerala High Court in Kathyee Cotton Mills Ltd. Vs. R. Padmanabha Pillai and Others, , and urged that where period has been prescribed by statute, the same cannot be altered and extended by the Court even u/s 148 or Section 151 of the Code.

On the other hand, learned Counsel for the respondents could not controvert the legal proposition except submitting that the extension of time granted to the respondent was in the interest of justice, equity and the discretion exercised by the authority does not call for any interference by this Court.

The undisputed factual position that emerges is that on 31.5.1982, the Assistant Collector 1st Grade-cum-Sub Divisional Magistrate, Jind had passed a decree in favour of the petitioner whereby the tenant-respondent was liable to pay Rs. 268.67P on account of rent/batai for Kharif 1978 besides Rs. 911.50P as costs. It was directed that the decretal amount be paid within six months and in the event of non-payment thereof, the tenant would be ejected. The tenant did not comply with the aforesaid decree and instead filed an application u/s 148 of the Code for extending the time for the deposit of the amount under the decree.

In view of the above factual backdrop, the question that arises for consideration in this petition is whether the authorities under the Act have jurisdiction to extend the period for deposit of rent beyond the period of six months from the date of decree or order of ejectment passed under the Act.

The legal position is summarized as under:- Section 7 of the Act reads thus:

Termination of tenancy:

No tenancy shall be terminated except in accordance with the provisions of this Act or except on any of the following grounds, namely:

(a) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx

(b) that the tenant has failed to pay rent within a period of six months after it falls due:

Provided that no tenant shall be ejected under this Clause unless he has been afforded an opportunity to pay the arrears of rent within a further period of six months from the date of the decree or order directing his ejectment and he has failed to pay such arrears during that period.

According to Section 7(1)(b) of the Act, no tenancy can be terminated unless the tenant has failed to pay the rent within a period of six months after it had fallen due. However, under the proviso, a tenant is afforded further period of six months to clear the arrears of rent from the date of decree or order directing his ejectment and if the tenant has failed to clear such arrears within the enlarged period, he is liable to eviction.

Now the case law relied on the subject are being discussed:

A Full Bench of this Court in Gurmej Singh''s case (supra) while considering the provisions under the Punjab Security of Land Tenures Act, 1953 (for short "1953 Act") had laid down that the period prescribed under the 1953 Act and the Rules during which the tenant can clear the arrears of rent is statutory and no jurisdiction is vested in the Assistant Collector or the appellate authority or the revisional authority to extend this statutory period under any circumstance. The relevant observations recorded in paras 18 and 27 of the judgment read as under:

From the above statement of law by the Supreme Court it can be clearly held as settled that where the legislature intends to give some benefit to the tenant in the matter of payment of arrears of rent, the same is specifically provided and it is not permissible to the Court to travel beyond its limits. u/s 14-A(ii) of the Act in spite of default of the tenant to pay the arrears of rent one month''s time is intended to be given by the statute to the tenant to pay or deposit the arrears and thereby save himself from the attempt of the landlord to eject him. However, the tenant under the garb of this opportunity cannot be allowed to misuse this benefit by purporting to raise contentions regarding non-existence of the relationship of landlord and tenant, non-liability of the arrears of whole or in part or even the alleged payment of arrears, though the same may be found to be unfounded and baseless by the Assistant Collector on inquiry. Under colour of these unfounded contentions, the tenant cannot take two advantages, one to prolong the proceedings for ejectment thereafter when the objections regarding the contentions raised by him are negatived, to get another opportunity to pay or deposit the arrears. The tenant at the time of putting his reply to the notice of demand is aware of the reality. If to his knowledge he is on firm footing regarding his non-liability of arrears of rent, he has full opportunity to prove his case. If the Assistant Collector upholds his contentions, no order of ejectment can be passed. If he has raised false contentions and all of them are repelled whether by the Assistant Collector or by the higher authorities in appeal or revision but he has not complied with the notice in Form ''N'' and not paid the arrears of rent in time as specified, he has himself to blame. The statute in fact while prescribing the period of one month in Form ''N'' unambiguously tells the tenant that he can make the payment within one month of the notice or he will have to face ejectment if he is found to be in fact liable to pay the arrears of rent. He has to make the choice at the time of putting his reply to the notice.

The upshot of the above discussion is that the effect of the combined reading of Section 14A(ii) of the Act, Rule 22 and Form N'' prescribed therein is that the period of one month as prescribed in the said notice of demand as issued by the Assistant Collector, II Grade, during which the arrears of rent can be paid by the tenant, is statutory and no jurisdiction is vested in the Assistant Collector, II Grade, before whom the application for demand is made in the first instance, the Appellate Authority or the Revising Authority, as the case may be, to extend this statutory period under any circumstances whether objection raised by the tenant in reply to the demand notice relates to the non-liability to pay the arrears in whole or in part. In view of this conclusion, there is no escape from holding that the decision in Balwant Singh''s case (1966) 68 P.L.R. 380 (supra) that in case the demand of the landlord in the notice of demand was challenged by the tenant as being excessive, it was not obligatory on the tenant to make the payment of even a part of the demand about which he did not raise any dispute and that the Assistant Collector, II Grade, has to grant a fresh opportunity to make payment after the final decision regarding the objection of the tenant, was not correct and is set aside. Similarly, in the ratio of decision in Smt. Sham Kaur''s case 1974 R.L.R. 25 (supra) correct law was not laid down in holding, though indirectly, that the Assistant Collector, II Grade, had the jurisdiction to extend time for payment of arrears of rent by the tenant though the period as pres6ribed in the notice of demand under Form ''N'' had already expired.

The learned Single Judge of this Court in Charan Dass''s case (supra) had held that neither the Assistant Collector nor the Financial Commissioner had got the powers to extend time for payment of the rent beyond the period stipulated in the statute.

Still further, the Full Bench of the Allahabad High Court in Jagjit Singh''s case (supra) was considering Section 16 of the UP Agriculturists'' Relief Act, 1934, wherein certain rights had been conferred on the mortgagor and it was provided that the Court shall order the applicant to deposit any balance within a prescribed period and consequences for non-payment within that stipulated time were also enumerated. The question mat arose for adjudication before the Hon''ble Full Bench was with regard to extension of time u/s 148 or 151 of the Code which had been originally fixed. It was held that Section 148 of the Code does not give power to the Court to extend the period already fixed under the Act. It was observed as under:

(26) Section 148, Civil P.C. is applicable only to extension of time where a period of fixed for doing of an act prescribed by the Code. It does not apply to a case where the period is fixed under any other statute. Nor can Section 151 which saves the inherent powers of the Court, be used for extending the period fixed u/s 16, Agriculturists'' Relief Act, for payment of the mortgage money. This is a matter for which provision is made by the statute and though Section 16, Agriculturists'' Relief Act, does not expressly say that the court cannot extend the time fixed for payment we have held that the omission is deliberate.

The aforesaid view was later on followed by the Division Bench of the Kerala High Court in Kathyee Cotton Mills Ltd''s case (supra).

Accordingly, the Financial Commissioner was not justified in accepting the recommendation of the Commissioner and setting aside of the orders of the Assistant Collector, 1st Grade and the Collector dated 27.12.1982 and 1.12.1983, respectively.

In view of the above, the writ petition is allowed. The impugned orders, Annexuers P-4 and P-5 are hereby quashed. The application filed by respondent No. 5 - tenant for extension of time to deposit the arrears of rent is hereby dismissed. There shall, however, be no order as to costs.