Parkash vs Financial Commissioner and Others

M.S. Liberhan, J.—Petitioner''s ejectment was sought from the land measuring 16 kanals as comprised in Rectangle and Khasra No. 47/10(8.0) 11 (8.0) situated in village Kanheri Kalan, Tehsil and Distt. Jagadhri, interalia on the grounds that they failed to pay rent in respect of the said land from Kharif 1981 to Rabi 1984 inspite of repeated demands without any sufficient cause.

Petitioners took the stand that the rent was paid in respect of the said land. Since there was no custom to issue receipt in respect of receipt of rent, no receipt was issued by the landlord. The Assistant Colleector Ist Grade, Jagadhri on appreciation of evidence produced before him came to the conclusion as a finding of fact that the writ-petitioners (respondents before the Collector) have not paid the batai to the owners from Kharif 1981 to Rabi 1994 in respect of the land in question without any reasonable cause. Consequently the ejectment of the petitiones was ordereed. The petitioners challenged the findings of the Assistant Collector Ist Grade, Jagadhri by way of an appeal before the Appellate Authority. The appellate authority affirming the findings of the Assistant Collctor Ist Grade, Jagadhri dismissed the appeal of the petitioners vide its order dated 29.1.1987.

The petitioners preferred a revision petition before the Commissioner and apart from challenging the finding of fact recorded by the authorities below took an additional stand, that the land in question, vide a civil Court decree in 1987, was transferred to respondents No. 6 to 21. The application for ejectment was defective as it did not mention the amount of batai. The revision petition was dismissed by the Commissioner, Ambala Division, Ambala by his order dated 17.3.1992, interalia holding, that on the date of application for ejectment applicants-respondents were the owners of the land in dispute and they continued to be so up till 3.6.1987 i.e. even after the order of ejectment passed against the petitioners was affirmed by the appellante authority. Consequently, the change of ownership of the petitioners qua the land in question was of no consequence and finding of the lower authoritiees with respect to non-payment batai without sufficient cause was upheld.

Though a number of grounds were taken before the Financial Commissioner yet from the reading of the order the only point argued before the Financial Commissioner appears to be that the tenants had made an offer that they were willing to pay the rent.

It was contended before the Financial Commissioner that in view of the amended proviso added to Section 14-A of the Punjab Seecurity of Land Tenures Act, 1953 if the tenant makes payment of rent and interest to be calculated by the Assistant Collector Ist Grade, at eight percent per annum on such arrears together with such costs of the application, if any, as may be allowed by the Assistant Collector Ist Grade either on, the first date of hearing or within fifteen days from the date of such hearing, he shall not be ejected. It was argued that in view of the amended proviso added to Section 14-A of the ibid Act since no opportunity to deposit the rent within 15 days was given, the petitioners are not liable to be ejected. Financial Commissioner came to the conclusion that since the first date of hearing was prior to the date from which amendment of 1992 came into force, consequently, in the facts and circumstances of the case in hand the amended provision would not be applicable.

In the writ petition, the petitioners have taken a number of grounds for impugning the orders of ejectment passed against the petitioners by the authorities below but all the grounds taken are factual in nature. The facts stated by the parties and determined by the authorities below cannot be gone into in exercise of writ jurisdiction, particularly when the petitioners have set up entirely a new case which they never set up before the hierarchy of the Tribunals i.e. from the trial Tribunal to the Revisional Tribunal. It would be perpetuating injustice or at the least allowing abuse of the discretionary jurisdiction of this Court if the petitioners are allowed to set up at the stage of writ justification entirely a new case which was never set up before the authorities below.

The ejectment of the petitioners from the land in question s on account of non-payment of rent, which by itself is a ground far ejectment and the amended proviso as referred to above has provideed that time may be given to deposit the rent. In the case in hand the ground of ejectment is independent from the ground of ejectment of non-payment of rent. In this case the ground of ejectment is that the petitioners have failed to pay rent regularly without there being suffiient cause for non-payment of rent. The authorities below have come to a categorical finding of fact that the petitioners have failed to pay rent from 1981 to 1984 for three consecutive years without there being sufficient cause. Nothing has been pointed out either in the petition or in any of the grounds taken before the authorities below to indicate that there was sufficient cause for non-payment of rent. The petitioners specifically took the plea that they had paid the rent. Sufficient cause for non-payment of rent is antithesis of payment of rent. The petitioners cannot approbate and reprobate in the same breath that is first to say that they have paid the rent, and, in the alternative, if the Court comes to a conclusion that the rent has not been paid then there was sufficient cause for non-payment of rent-inspite of there being no cause pleaded much less proved. The learned counsel for the petitioners has relied on Fauja Singh v. Mohinder Singh 1975 P.L.R. 334 Nazar Singh v. Smt. Indu Mati 1992 P.L.R. 108 whereas learned counsel for the respondents has relied on Mrs. Raj Kanta v. F.C. Punjab 1980 P.L.R. 346 and Shrimati Kirpal Kaur v. Bhagwant Rai (1962) 64 P.L.R. 717. The authorities cited by learned counsel for the parties have been noted as they were cited at the bar though in our considered view these are not even remotely, relevant to the points put-forth during the course of the arguments, particularly in view of the observations made above.

For the reasons recorded above, we find no force in the submission of the learned counsel for the petitioners. The writ petition is dismissed, however, with no order as to costs.