Buti Shah vs Financial Commissioner

M.M. Punchhi, J. (Oral)

The petitioners are aggrieved against the revisional order dated October 11, 1974 (Annexure P. 7) passed by the Financial Commissioner Revenue, Punjab, Chandigarh, in exercise of powers under Section 84 of the Punjab Tenancy Act (hereinafter referred to as the Act) and have approached this Court under Articles 226/227 of the Constitution of India, to get the same quashed.

Facts giving rise thereto are these. Details apart, the petitioners claim themselves to be the owners of a parcel of land measuring 75 Kanals 2 Marlas at village Fatehpur Banga, Tehsil Ropar, wherein Piara Singh respondent was a tenant. On the allegations that the tenant had failed to pay rent with regard to two harvests, namely, Kharif 1970 and Rabi 1971, the landlordslandowners claiming themselves to be small landowners, filed a suit for his ejectment under Section 77(3)(e) and (n) of the Act. These clauses may will be noted here :

"(e) suits by a landlord to eject a tenant; ...........

(a) suits by a landlord for arrears of rent or the money equivalent of rent, or for sums recoverable under section 14 or suits for the recovery of such arrears or sums by any other person to whom a right to recover the same has been sold or otherwise transferred;"

The petitioners laid premises in the plaint the total amount of produce for the two crops was Rs. 2100/ and their share being Rs. 700/, the tenant was liable to pay the same to them. However, they confined their claim to Rs. 500/ for which they prayed for a decree. Besides that claim the petitioners had two grounds for ejectment:

(i) that they were small landowners, and

(ii) that the tenant had failed to pay rent for two crops without sufficient cause.

The petitioners could well have opted for the summary remedies available to them for these reliefs under section 14A(i) and 14A(ii) of the Punjab Security of Land Tenures Act, 1953, but it seems they opted for the regular remedy of a suit for the purpose. The trial Court, on the pleadings of the parties, framed amongst others three issues which are relevant for our purpose:

(1) Whether the defendant is liable to be ejected from the land in suit on the grounds given in the plaint ? O.P.P.

(2) Whether the defendant is liable to pay the rent as claimed? O.P.P.

(7) Whether the defendant has sufficient justification for not making the payment of the rent entitled? If so, to what effect? O.P.D.

The Court of Assistant Collector Ist Grade decreed the suit on 13.12.1971, vide order Annexure P2 observing as follows :

"Thus in the light of the findings of issues Nos. 1 to 7, I pass the decree for the amount of Rs. 499.14 with proportionate costs for the harvests kharif 1970 and Rabi 1971 against the defendant in favour of the plaintiffs, and order his ejectment from the land in question on account of nonpayment of rent without sufficient justification as well as on the ground that the plaintiffs are small landowners."

The tenant unsuccessfully appealed against the same before the Court of Collector, Ropar, who vide his order dated 23.5.1972 (Annexure P.4) observed that he was in total agreement with the Assistant Collector Ist Grade. He rather observed that the tenant himself had admitted that no payment had been made but his only prayer was that he be allowed to make the payment then. The tenant''s efforts to get that order revised before the Commissioner, Patiala Division, too, were an exercise of futility for he, vide his order dated 17.1.1973 (Annexure P.6) refused to interfere in the orders of the Revenue Courts below. It is in that situation that the tenant approached the Financial Commissioner for relief.

The Financial Commissioner upset the orders of all the Courts below, vide his impugned order Annexure P.7. He wrote an elaborate order of 27 pages. Paragraphs 1 to 11 thereof are confined to the arguments raised by respective counsel and their respective replies. It is in paragraphs 12 and 13 that he laid justification for his order in upsetting the orders of the Revenue Courts below. It can well be split in three parts. He held :

(i) the onus of proving that the petitioners were small landowners was wrongly placed upon the tenant, and, thus it is an irregularity justifying his interference, vitiating the findings of the Courts below upon issues Nos. 1 and 6;

(ii) no notice was sent to the tenant in the proper form and it was not clear from the record if proper notice was served in accordance with law and this, being a material irregularity, vitiated the trial; and

(iii) the suit was triable by an Assistant Collector 2nd Grade under the Rules framed by the Assistant Collector and had wrongly been tried by the Court of the Assistant Collector Ist Grade, which had tended to violate the healthy principle that the case should be heard at the lowest level of hierarchy by Revenue Courts. And this too was an infirmity in the nature of illegality and material irregularity as also lack of jurisdiction.

It is in this light that the orders of the Revenue Courts below were not allowed to sustain.

The facts as averred in the petition, have been disputed by the counsel of the respondenttenant with the aid of the narration and observations made in the judgments of the subordinate Revenue Courts, but he has otherwise not filed any return. The emphasis laid by the learned counsel for the respondents that the respondenttenant was not in arrears of rent and not for long, is not the concern of this Court in the present proceedings in which a writ of certiorari has primarily been prayed for. It is equally not the concern of this Court whether the findings of fact arrived at by one court or the other are reconcilable with the evidence on that score. What is mainly argued by Mr. Sarin, learned counsel for the petitioners, is that the grounds on which the impugned order has been passed by the Financial Commissioner, reveal such glaring errors of law that this Court should be well pleased to upset it by issuing a writ of certiorari unhesitatingly.

In the first place, it is contended that in the suit, relief was claimed under three heads, one, was a simple money decree, the second asking for room to put the landowners in possession in the place of the tenant, and the third, cashing on the default of the tenant in not making payment of the arrears of rent without sufficient cause. With regard to the first relief, it was countered that the decree with regard thereto had to be subjected to the fetters of section 42 of the Punjab Tenancy Act, as has been rightly pointed out by the learned counsel for the tenantrespondent, as a measure of legal caution. Now, section 42 of the said Act puts a restriction on ejectment in the matter of execution of a decree for arrears of rent. It provides that when a decree for an arrears of rent in respect of a tenancy has been passed against the tenant and remains unsatisfied, then a notice is required to be given to the tenant to pay the arrears of rent, failing which an order has to be passed ejecting the tenant therefrom. This measure in stricto sensu is that of punishment for noncompliance of the decree. In other words, it is not a measure for ejectment in the strict sense, the primary object being to recover arrears of rent. The analogous provision of law can well be found in Section 14A(ii) of the Punjab Security of Land Tenures Act, 1953, where the prominent motive of the landowner approaching the officer is to recover arrears of rent. On that score, the fair stance adopted by Mr. Sarin, has well answered the objections of the learned counsel for the respondent and, here that portion of the decree determining money liability does not at all effect the other portions of the decree which provide the reasons for the decree of ejectment.

The ground for ejectment on the strength of the petitioners being small landowners, was based on their plea that their status was such. The Financial Commissioner took the view that the issue was put in the negative and its onus was wrongly placed on the tenant. In the first place, it may be observed that the onus could well have been displaced by taking appropriate steps within a reasonable time of the framing of the issues. All the same, the parties were aware thereof and had full opportunity to lead evidence on that score. It was too late in the day and that too, at the revisional stage to upset the well reasoned judgments of the Revenue Courts on the wrong placement of onus on an issue. The analogous provisions of law comprised in section 14A(i) and Section 9(1)(i) of the Punjab Security of Land Tenures Act gives right of ejectment to a small landowner. Though the onus of proving that he is a small landowner is on such owner, but to prove it negatively that he is not such a one, is on the tenant. The question involved is such that it is intermixed in positives and negatives. But, be that as it may, the ejectment order did not rest solely on that score, for had it been so, the tenant could well have taken the aid, that before he was to be ejected from the land, he had to be provided an alternative surplus area under the law for the purpose. This ground, though available to the landownerspetitioners, had an innate right conferred on the tenant to be rehabilitated in case of displacement. In this view of the matter, the wrong placement of onus was of no significance and the revisional jurisdiction exercised by the Financial Commissioner was an error of law committed by him.

The second ground of ejectment was the tenant''s failure to pay rent without sufficient cause. All the three Courts had held that the tenant had failed to pay the due rent admittedly and had not been able to plead any justifiable cause for nonpayment. The utterance of the tenant that he was prepared to make payment and that, for the purpose, a notice was required to be given to him, has been the basis of the second ground adopted by the learned Financial Commissioner to pass the impugned order. It is not clear from the said order as to what notice was within the conception of the Financial Commissioner. Learned counsel for the respondent, however, claims that this is the notice which is normally sent to a tenant under the provisions of Section 14A(ii) of the Punjab Security of Land Tenures Act. Perhaps the learned counsel, for a limited extent is right on that score. But, all the same, this would not cure the illegality committed. It is to be seen that the notice, as envisaged under section 14A(ii) of the Punjab Security of Land Tenures Act, is an ex parte notice to the tenant to make payment by a certain date and, in case he questions his liability in that regard, an enquiry to determine that fact was well in contemplation. If the result of that enquiry went in favour of the tenant, or even against him, no notice was subsequently required to be sent to him. See in this connection Gurmej Singh v. The Financial Commissioner, Revenue, Punjab, Chandigarh, 1980 Punjab Law Journal 603 (F.B.). Now, here the argument proceeds on a blurred basis. If it talked in the terms of arrears of rent so as to attract the spirit of Section 14A(ii) of the Punjab Security of Land Tenures Act, that aspect has been taken care of by that part of the decree which relates to money and which would attract the provisions of section 42 of the Punjab Tenancy Act. But if it pertains to the tenant''s failure to pay rent regularly without sufficient cause, no notice is contemplated to make him pay the arrears of rent, so as to wipe out the default of nonpayment of rent without sufficient cause. On that score, I think the order of the Financial Commissioner is not sustainable for there was no material irregularity or illegality in not issuing a notice to the tenant in proper form.

Lastly, the Financial Commissioner has taken the view that the case should have been tried by the Assistant Collector of the 2nd Grade and not of the Ist Grade. This is an aspect which could well have been raised at the earliest stage. No issue on this score has been claimed by the respondent and this question seems to have been raised for the first time before the Financial Commissioner. He nowhere has held that the Assistant Collector Ist Grade had the inherent lack of jurisdiction to try such a suit. As provided by sub section (3) of Section 77 of the Punjab Tenancy Act, the suits in clauses (c) and (n) are triable by Revenue Courts. It is clear that a suit in clause (e) is in the second group and a suit in clause (n) is in the third group. It is only for the clauses in the third group that an Assistant Collector of the 2nd Grade was empowered to hear the suits whereas the Assistant Collector of the Ist Grade, on his own was entitled to hear suits in both second and third groups. Thus, it is clear that at best the suit under clause (e) was exclusively triable by the Court of the Assistant Collector of Ist Grade. And if one of the reliefs claimed therein was that which fell under clause (n) in the third group and triable by an Assistant Collector 2nd Grade, the Assistant Collector Ist Grade thus cannot be said to have no jurisdiction at all to try suit. That view of the Financial Commissioner too, terming such exercise of jurisdiction to be illegal, and materially irregular, reveals a patent error of law justifying interference by this Court in writ jurisdiction.

The upshot of the above discussion is that the impugned order of the Financial Commissioner is totally unsustainable. He has committed an illegality in upsetting the well considered judgments of the Revenue Courts below. Accordingly, the said order is hereby quashed by allowing the petition, but without any order as to costs.