Pera Ram vs The Financial Commissioner and Others

Shamsher Bahadur, J.—Five petitions, Civil Writs Nos. 18, 19 and 53 of 1963 and Civil Writs Nos. 2767 and 2768 of 1964 are being disposed of by one judgment as they involve an identical question of law raised between different tenants in the five petitions and the common land-owner who is Raj Kanta.

The undisputed facts in the first set of petitions are somewhat different from the second but the identity of the common question would become apparent as these are narrated. Pera Ram, Ganga Ram and Bhago, all three of whom are tenants, separately applied on 4th of September, 1961, u/s 18 of the Punjab Security of Land Tenures Act, (hereinafter called the Act) for purchase of the lands belonging to the land-owner Raj Kanta, having been held by them for more than six years. These applications were accepted by the Assistant Collector 1st Grade, Fazilka, on 31st of October, 1961, and each of the three petitioners deposited the first installments amounting to Rs. 1722.15, Rs. 1243.35 and Rs. 2306.40 respectively the first two on 8th of November, 1961, and Bhago on 10th of November, 1961. The landowner in each case filed an appeal which was allowed by the Collector on 10th of January, 1962. All the three tenants filed further revision petitions before the Commissioner of Jullundur Division, who issued a stay order of eviction on 30th of March, 1962, but later rejected the petitions on 31st of May, 1962. The landowner did not rest content there and actually applied for ejectment of these three tenants on 6th of March, 1962, the ground in each case being that the rent for Kharif 1961 amounting in the first two cases to Rs. 350/- and in Bhago''s case to Rs. 500/- had not been paid without sufficient cause. The Assistant Collector on 2nd of April, 1962, dismissed these three applications" but the Collector by three separate orders passed on 31st of May, 1962, allowed the appeals of the landowner and passed orders for the ejectment of the tenants. The tenants'' further appeals before the Commissioner were dismissed en 5th of November, 1962. The Financial Commissioner also upheld the ejectment orders on 21st of December, 1962 in the petitions for revision filed before him. The tenants, Pera Ram, Ganga Ram and Bhago have filed Civil Writ petitions Nos. 18, 19 and 53 of 1963, respectively, to challenge the orders of the Financial Commissioner, on the ground that the orders of ejectment have been passed without jurisdiction as the authorities could not pass these orders under the provisions of the Punjab Security of Land Tenures Act.

In the other two writ petitions which are at the instance of the landowner Raj Kanta, the point involved is the same, though the facts leading upto these petitions are slightly different. Raj Kanta is admittedly a big landowner under the Act and had reserved certain lands which she was permitted to do under its provisions. Kalu Ram, the second respondent in Civil Writ No. 2767 of 1964, and Megh Ram, also the second respondent, in Civil Writ No. 2768 of 1964, applied on 4th of September, 1961, to the Assistant Collector 1st Grade for purchase of land as the tenants in the other three petitions u/s 18 of the Act, on the same ground that they had been in continuous occupation of their holdings for the last six years. It would be observed that these tenants also applied on the same date as the tenants in the other set of petitions. These petitions were allowed by the Assistant Collector as the petitions of the three petitioners in the other set on 31st of October, 1961. The Collector in appeals of the landlord reversed these orders on 10th of January, 1962, on the same date when the Collector allowed the appeals in the case of the three tenants in the other set. The revisions again like the other set were dismissed by the Commissioner on 31st of May, 1962. The landowner then on 22nd of February, 1962, made an application u/s 14-A(i), read with section 9(1)(ii) of the Act for eviction of the tenants on the ground that they were in occupation partly of the reserved area of the petitioner and further for the reason that they had not paid the batai to the landowner for Kharif 1961. The Assistant Collector allowed the applications of the landowner and made an order of ejectment on 12th of February, 1934. The appeals of the tenants were dismissed again by the Collector on 17th of March, 1964 and also by the Commissioner on 21st of July, 1964. The Financial Commissioner, however, in further revision petitions was of the opinion that there was sufficient cause for not paying rent for Kharif 1961 and therefore, declined to affirm the orders of ejectment so far as they related to the land which had not been reserved. With regard to the areas which had been reserved by the landowner the orders of the subordinate authorities were confirmed and the dispute in Civil Writ petitions No. 2767 and 2768 of 1964 only relates to the ejectment from areas in respect of which rent for Kharif 1961 has not been paid. It may be mentioned that Civil Writ No. 2768 of 1964 is not pressed and Mr. Sibal, appearing for the landowner, has asked for relief only in Civil Writ No. 2767 of 1964.

It would now be observed that the common question which falls for determination in petitions Nos. 18, 19 and 53 of 1963, as also in petition No. 2767 of 1964, which out of the other set survives for decision, is whether an order for ejectment can be passed in respect of lands for which no rent has been paid for Kharif 1961? It is common ground that the ejectment was sought and granted only for non-payment of rent in respect of Kharif 1961.

Before entering into a discussion of the matters which arise for determination in these petitions it would be well to set out the relevant provisions of the Act.

Under sub-section (1) of section 18 :

18.(1). Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a landowner other than a small landowner :

(i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or

(ii) * * * * *

(iii) * * * * *

shall be entitled to purchase from the landowner the land so held by him but not included in the reserved area of the landowner,....

(2) * * * * *

(3) * * * * *

(4)

(a) * * * * *

(b) On the purchase price or the first installment thereof, as the case may be, being deposited, the tenant shall be deemed to have become the owner of the land, and the Assistant Collector shall, where the tenant is not already in possession, and subject to the provisions of the Punjab Tenancy Act * * put him in possession thereof.

Section 9 sets out the circumstances in which a tenant is liable to be ejected and sub-section (1) is to this effect :

9(1). Notwithstanding anything contained in any other law for the time being in force, no landowner shall be competent to eject a tenant except when such tenant :

(i) is a tenant on the area reserved under this Act or is a tenant of a small landowner;

(ii) fails to pay rent regularly without sufficient cause; or

(iii) is in arrears of rent at the commencement of this Act; or

(iv) has failed, or fails, without sufficient cause, to cultivate the land comprised in his tenancy in the manner or to the extent customary in the locality in which the land is situate;

(v) has used, or uses the land comprised in his tenancy in a manner which has rendered, or renders it unfit for the purpose for which he holds, it;

(vi) has sublet the tenancy or a part thereof; provided...

(vii) refuses to execute a Qabuliyat or a Patta, in the form prescribed, in respect of his tenancy on being called upon to do so by an Assistant Collector on an application made to him for this purpose by the landowner.

(2) Notwithstanding anything contained hereinbefore a tenant shall also be liable to be ejected from any area which he holds in any capacity whatever in excess of the permissible area :

Provided * *

In section 9-A, it is provided that a tenant who becomes liable to ejectment under clause (i) of sub-section (1) of section 9, shall not be dispossessed unless he is accommodated on a surplus area in accordance with the provisions of section 10-A. Section 10 entitles a tenant who had been ejected from any land in excess of the permissible area on grounds other than those mentioned in section 9 before the commencement of the Act to be restored possession on an application made to the Assistant Collector. Section 10-A relates to utilization of surplus areas for resettlement of tenants. Section 14-A provides a summary procedure for ejectment of tenants and it is specifically stated that it is to be made subject to the provisions of section 9-A, namely that no ejectment can take place of a tenant who is liable to be ejected under clause (i) of sub-section (1) of section 9 unless he is accommodated on a surplus area in accordance with the provisions of section 10-A. It is to be noted that the petitions for ejectment of the tenants were made u/s 14-A, the landowner obviously taking advantage of the summary procedure provided by the various clauses of this section. Section 17 provides a right to the tenant to pre-empt certain lands which are sold by the landlords. It may be reiterated that section 18 whose relevant clauses have already been reproduced aforesaid provided a right to a tenant to purchase land and on payment of the first installment he is to be deemed a tenant.

These provisions make it clear that the object and purport of the Punjab Security of Land Tenures Act is to provide, as the Act says, security to the tenants. It is important to emphasise this aspect as it is the case of the landowner that a single default in payment of rent would entitle him to move the Assistant Collector u/s 14A for ejectment of a tenant. The cardinal question is whether the default contemplated in clause (ii) of sub-section (1) of section 9 "to pay rent regularly without sufficient cause" envisages a person who fails to pay rent, as is the case in these petitions for only the Kharif harvest of 1961. It is common ground that when the applications for ejectment were made the only rent which was due to the landowner was for Kharif 1961. Subsequently, of course, arrears may have swelled but one default alone gave the prime cause for the landowner to move for the tenants'' ejectment. In my opinion, the provisions of the Act would be lost of their true purpose and meaning if clause (ii) of sub-section (1) of section 9 is construed to entitle a landlord to enforce ejectment of a tenant on the ground that default of even one payment is "failure to pay rent regularly". I will not yet deal with the modifying clause "without sufficient cause". That could only be considered if failure to pay rent regularly is covered by a single default made in payment. I resolutely decline to give such a meaning to the word "regularly" as suggested by the counsel for the landowner who has cited an old English authority, Simpson v. Manley 37 RR 621, in support of the proposition contended for. Lord Lyndhurst, C.B. was interpreting the words "regularly made" in a guarantee, and he observed thus at page 622; -

The expression ''regularly made'', in the guarantee, appears to me to mean regularly made according to terms to be agreed upon, and not according to the terms of the trade.

Even if the ratio decidendi of this case is admitted to be that a single default would entail the penalty of ejectment there is hardly any occasion to apply this old rule of law merchant in the interpretation of a measure of agrarian reform which is designed to protect the security of tenure of the tenants. When tenants are given the right to purchase land which has not been reserved and even granted by Legislature the right to pre-empt lands it would be an anachronism to say that ejectment would be the consequential result if a single default to pay rent at the appointed time occurrs. The collocation and the context of the word "regularly" does not support the somewhat strict grammatical meaning attributed to it by the learned counsel for the landowner and I would accordingly hold that "failure to pay rent regularly" means that the tenant has been regularly or consistently failing to pay rent to the landowner as contemplated by the agreement. "Contumacy" is implied in clause (ii) of sub-section (1) of section 9 and a tenant could not be called upon to vacate the land by the summary procedure merely because a single default has occurred in payment of rent.

This conclusion would render it unnecessary to discuss the words "without sufficient cause" in clause (ii) of sub-section (1) of section 9. The learned Financial Commissioner in the impugned order in Civil Writ No. 2767 of 1964 has held that the tenant having paid the first installment of purchase money had sufficient cause to withhold the rent for Kharif 1961, a conclusion which is not unwarrantable by the provisions of the Act. In the view which I have taken, it is however, futile to pursue this matter further.

Mr. Sibal, for the landowner, has next argued that even if clause (ii) of sub-section (1) of section 9 did not entitle the landowner to procure an order of ejectment the Commissioner''s order in appeal should be regarded as final as interference in revision is to be confined u/s 24 of the Act to the circumstances enumerated in the Punjab Tenancy Act. Now, under sub-section (5) of section 84 of the Punjab Tenancy Act, the Financial Commissioner can interfere in re-visional proceedings only on the grounds on which the High Court in the exercise of its re-visional jurisdiction may interfere under the Code of Civil Procedure. In his ensuing contention, it is submitted by the learned counsel that even a wrong decision on a question of law would not entitle a High Court in revision u/s 115 of the CPC to interfere and it is argued that mutatis mutandis the jurisdiction in a writ of certiorari is curtailed. Two decisions have been cited by the learned counsel in support of this submission, both of the Supreme Court. The first one is Keshardeo Chamria Vs. Radha Kissen Chamria and Others, Mr. Justice Mehr Chand Mahajan, in the judgment of the Court, said at page 28, that "the words ''illegally'' and ''material irregularity'' do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with." The later decision of Vora Abbasbhai Alimahomed Vs. Haji Gulamnabi Haji Safibhai, supports this proposition and Mr. Justice Shah reiterated that :

The High Court may exercise its powers in revision only if it appears that in a case decided by a Subordinate Court in which no appeal lies thereto the Subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. If the trial Court had jurisdiction to decide a question before it and did decide it, - whether it decided it rightly or wrongly, the Court had jurisdiction to decide the case, and even if it decided the question wrongly, it did not exercise its jurisdiction illegally or with material irregularity. The decision of the District Court that the tenant established or failed to establish his readiness and willingness to pay the standard rent does not affect the jurisdiction of the Court conferred by law upon it.....

The learned counsel says that the appellate authorities, namely the Commissioner and the Collector, had authority to decide the question whether the landowner could eject the tenant under clause (ii) of sub-section (1) of section 9. These authorities may have mis-interpreted and mis-construed the provisions of law but that was merely an error of law and could not be redressed in the exercise of jurisdiction under Article 226 of the Constitution. In my opinion, this argument is not available to the learned counsel for the simple reason that on a plain interpretation of section 9 of the Punjab Security of Land Tenures Act, the revenue authorities had no jurisdiction to make an order of ejectment. Such an order would be contrary to the express provisions of the statute as also its intendment. Viewed in this perspective, I must hold that the order of the Financial Commissioner in Civil Writs Nos. 18, 19 and 53 of 1963 is clearly one which can be interfered with in writ proceedings while in the petition of the landlord (Civil Writ No. 2767 of 1964) the conclusion of the Financial Commissioner appears to be within the four corners of the statute itself.

In the result, petitions Nos. 18, 19 and 53 of 1963 succeed and are allowed and petition No. 2767 of 1964 is dismissed. I make no order in Civil Writ No. 2768 of 1964, that not hiving been pressed. In the circumstances, there would be no order as to costs.