Asthan Dharam Dwara vs The Financial Commissioner and Others

Shamsher Bahadur, J.—This is a petition under Article 226 of the Constitution of India directed against the orders of the Assistant Collector, the Collector, the Commissioner and the Financial Commissioner, Punjab, who have given relief to the 5th respondent Santa Singh in respect of land held by him as a lessee of the petitioner under the provisions of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter called the Act).

The petitioner is described as "Asthan Dharam Dawara" in village Shankarpur, through its Mohtmim Khem Singh. Briefly stated, the point is whether a tenant can claim protection of the tenancy legislation against an institution which is claimed to be a religious and charitable institution. The fifth respondent not having paid the rent a notice was issued for his ejectment u/s 45 of the Punjab Tenency Act. An objection was taken in the vaguest possible terms that the landlord, being a religious and charitable institution, is excepted from the provisions of ceiling under the Act. The notice was based on the ground which is stated as under:

Orders concerning 30 standard acres are not applicable on the land under dispute. Party No. 2 has not paid the batik. Defendant wants this land for his personal cultivation whereas the plaintiff has his own land to cultivate ?

Reference may be made at this stage to sub-section (1) of section 51 of the Act which says that "the provisions of the Act shall not apply to.

(a) * * * *

(b) * * * *

(c) lands belonging to any religious or charitable institution but not to a Mahant Mohtamim or manager thereof:

The suit of the tenant was decreed by the Assistant Collector and this order was affirmed in appeal by the Collector. An objection was raised for the first time before the Financial Commissioner in revision that sections 7 and 7-A of the Act could not be pressed into service for the benefit of the tenant as the provisions of the Act are not applicable to the petitioner for whom the status of a religious and charitable institution is claimed. The learned Financial Commissioner considering that the question should have been raised before the Commissioner and the lower Court declined to entertain it and rejected the petition for revision on 14th of January. 1964.

It is contended by Mr. Babu Ram Aggarwal. the learned counsel for the petitioner, that the objection which has been raised in this petition goes to the root of the matter and should have been entertained by the Financial Commissioner. It is submitted that the reply to the notice had been drafted by a scribe and the petitioner''s case had not been well presented before the revenue Courts. It would be pertinent to observe that the objection on ground of clause (c) of sub-section (1) of section 51 of the Act requires determination essentially on a question of fact whether the petitioner is in fact a religious and charitable institution, That is a matter on which evidence had to be adduced and it is well-settled that in writ proceedings questions even of jurisdiction cannot be raised for the first time when they could and should have been raised before the appropriate tribunals or authorities. Reference may be made to the authority of Chief Justice Chagla and Dixit J. in Gandhinagar Motor Transport Society Vs. State of Bombay, , where it was held that before a question of jurisdiction of a tribunal is raised on a petition under Articles 226 and 227, objection to jurisdiction must be taken before the tribunal whose order is being challenged." The karnel of the dispute is whether the institution, of which Khem Singh is a Mohtmim, is a religious and charitable institution and are the provisions of the Act applicable. This is a point which had to be decided by and fell within the jurisdiction of the Assistant Collector and the appellate and re-visional authorities. This point not having been raised, it cannot be permitted to be argued for the first time before this Court in writ proceedings. On that short ground, this petition must be dismissed.

It may be reiterated that the nature of the institution being in dispute, the determination of the question required evidence and it was held by their Lordships of the Supreme Court in Union of India (UOI) Vs. T.R. Varma, , that where there is a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence, it is not the practice of Courts to decide it in a writ petition.

I would accordingly dismiss this petition with costs.