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Gurmej Singh and ors. Vs. the Financial Commissioner, Revenue, Punjab, Chandigarh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 85 of 1973
Judge
Reported inAIR1981P& H34
ActsPunjab Security of Land Tenures Act, 1953 - Sections 14-A; Constitution of India - Articles 226 and 227; Punjab Security of Land Tenures Rules, 1956 - Rule 22
AppellantGurmej Singh and ors.
RespondentThe Financial Commissioner, Revenue, Punjab, Chandigarh and ors.
Cases ReferredGurcharan Das v. Gonda Mal
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....harbans lal, j. 1. this writ petitioner was heard by me in the first instance on april 25, 1980. after hearing the arguments on both sides, i came o the conclusion that there was an apparent conflict of opinion regarding the scope conflict of opinion regarding the scope and ambit of section 14-a(ii) of the punjab security of land tenures act, 1953(hereinafter to be called the act) between two division benches of this court in smt. sham kaur v. financial commissioner, revenue, punjab 1974 rev lr 25(punj) and balwant singh v. sodhi lal singh,1966-68 pun lr 380: (air 1966 punj 483) and keeping i view the importance of the questing of law involved, reference to a full bench was necessitated. it is in this background that the writ petition has been heard by the full bench. 2. for proper.....
Judgment:

Harbans Lal, J.

1. This writ petitioner was heard by me in the first instance on April 25, 1980. After hearing the arguments on both sides, I came o the conclusion that there was an apparent conflict of opinion regarding the scope conflict of opinion regarding the scope and ambit of Section 14-A(ii) of the Punjab Security of Land Tenures Act, 1953(hereinafter to be called the Act) between two Division Benches of this Court in Smt. Sham Kaur v. Financial Commissioner, Revenue, Punjab 1974 Rev LR 25(Punj) and Balwant Singh v. Sodhi Lal Singh,1966-68 Pun LR 380: (AIR 1966 Punj 483) and keeping I view the importance of the questing of law involved, reference to a Full Bench was necessitated. It is in this background that the writ petition has been heard by the Full Bench.

2. For proper appreciation of the different contentions raised on both sides and the important legal question involved, brief reference to the fact of the case is necessary. Some land of Bahadur Singh, petitioner No. 4 was declared surplus under the provisions of the Act which was transferred by him in favour of his two sons and his wife, petitioners nos. 1 to 3 by means of a gift deed, dated May 29, 1955. This gift was ignored and the surplus land was allotted to respondents Nos. 3 to 5 in different parcels under Section 10-A of the Act as tenants, who entered into possession on September 29, 1964. The petitioner as landlords filed an application before the Assistant Collector II nd Grade, Revenue, under Section 14-A(ii) of the Act, demanding arrears of rent for the crops from Kharif 1964 to Rabi 1968 in form 'M'. On this notice under form 'N' was issued to the respondents as tenants, according to which they were called upon to pay the arrears of rent within one month. The tenant-respondents filed objection in reply thereto and contended that there was no relationship of landlord and tenant between them and the petitioner Nos. 1 to 3. It was also contended that they had paid rent to petitioner No. 4. The assistant Collector by his order dated March 22, 1969(Annexure A) allowed the objections and dismissed the application of the landlord-petitioners. This order was set aside, in appeal by the Collector by his order, dated August 26, 1969(Annexure B) and the order of ejectment was passed. The same order having been challenged by the tenant before the Commissioner, the case was remanded to the Collector vide his order dated December 10, 1969(Annexure C). However, the Collector, on remand, maintained his earlier order of eviction by his order, dated February 23 1970(Annexure D) This was also set aside by the Commissioner by his order, date August 17, 1970, (Annexure E) and the case was remanded back to the collector for fresh decision on the following two points :

(1) Whether the tenant-respondents had deposited the rent for the year 1967-68 with the Assistant collector IInd Grade? If so what was its effect keeping in view the further contention of the tenants that the rent had been paid by them to Bahadur Singh?

(2) As the rent for two harvests was barred by time no order for ejectment of the tenants could be passed.

3. The Collector, on remand, passed the order of eviction, dated 15th February, 1971(Annexure F).It was held that the rent for Rabi 1965 was not time barred but it was time barred for Kharif 1964,However, for the Purposes of section 14-A(ii) of the Act, even time barred rent was due from the tenant and it was their duty to pay the same. It was further held that as the application by the landlords had been filed on May 20, 1968 rent for Rabi 1968 which was to fall due on June 15, 1968 had not become due at the time of filing of the application. From Kharif 1965 to Kharif 1967 rent to the tune of Rs. 2, 429,68 had fallen due and was payable by the tenants, Regarding the contention by the tenants that the rent had been paid to Bahadur Singh petitioner, it was held that the alleged payment had not been proved. In view of these findings the order of ejectment was passed. This time the appeal by the tenants-respondents before the Commissioner had no effect which was dismissed. The matter was still pursued further by way of revision before the Financial Commission, Revenue, Punjab. The learned Financial Commissioner came to the conclusion that the tenants had deposited Rs. 194.28 in respect of one crop of 1967, that the rent for the harvest Kharif 1964, being time barred was not due and could not be treated as arrears of rent, that the rent for the harvest year 1967-68 had been deposited by the tenants after the filling of the application under Section 14-A(ii) of the Act and that the rent for the harvest Rabi 1968, had also fallen due. It is also significant to note at this stage that before the collector when the case was heard after the order of remand by the Commissioner for the second time, the relationship of landlord and tenant was admitted by the tenants. The learned Financial Commissioner relied on the decision of this Court in Ashok Kumar v. The Financial Commissioner, Revenue Punjab,Chandigarh 1966 Lah LT 77, and held that the order of ejectment could not be passed without affording fresh opportunity to the tenants to make the payment if arrears and rent as the entire rent demanded by the landlords was not due though arrears of rent for some harvests were payable.The revision petition was thus allowed ad it was held that the tenants were liable to pay rent which may be determined on the basis of the produce statement produced before the Assistant Collector, IInd Grade, for the harvest Rabi 1965 to Rabi 1968 within a month of the order.

4. This order has been challenged in the present writ petition under Articles 226 and 227 of the Constitution of India.The legality of this order has been strenuously challenged on the ground that if in pursuance of a notice under Form 'N' as prescribed in pursuance of an application under Section 14-A(ii) of the Act by the landlord, arrears of rent are not paid by the tenants within one month from the date of the notice, the order of ejectment has to be passed by the Assistant Collector, who has no jurisdiction to give further opportunity for deposit of the arrears of rent. It has also been urged that not only the Assistant Collector, Revenue, concerned even the higher authorities in appeal or revision have no jurisdiction to extend the statutory period as prescribed for payment of arrears of rent. It is also the case of the petitioners that in case the demand of the landlord regarding the arrears of rents objected to by the tenant as being excessive, it is the duty of the tenant to pay the part of arrears of rent which may be admitted by him to be due and it is not open to him to withhold the payment of even a part of rent so admitted only on the ground of excess demand having been made by the landlord. It had also been stressed that any payment by the tenant after the expiry of the statutory period as prescribed in the notice cannot save the tenant from ejectment. At this stage section 14-A(ii) of the Act if reproduced below:---

'a land-owner desiring to recover arrears of rent from a tenant shall apply in writing to the Assistant Collector, second Grade, having jurisdiction, who shall thereupon send a notice, in the form prescribed, to the tenant either to deposit the rent or value thereof, if payable in kind, or give proof of having paid it or of the fact that he is not liable to pay the whole or part of the rent, or of the fact of the landlord's refusal to receive the same or to give a receipt, within the period specified in the notice. Where, after summary determination as provided for in sub-section (2) of Section 10 of the Act, the Assistant Collector finds that the tenant has not paid or deposited the rent, he shall eject the tenant summarily and put the land-owner in possession of the land concerned.'

5. Under Rule 22 of the Punjab Security of Land Tenures Rules, 1956(hereinafter to be called the Rules) the application under the above provision to recover the arrears of rent is to be in Form 'M' as prescribed in sub-rule (2) of Rule 22, which is reproduced below :

'A land-owner desiring to recover the arrears of rent from a tenant, under Section 14-A(ii) of the Act, shall apply to the Assistant Collector, II Grade, having jurisdiction, in Form M, and the Assistant Collector shall thereupon issue a notice to the tenant Form N.'

The notice to be issued to the tenant is to be in accordance with Form 'N', which is also reproduced below:-

'From

The Assistant Collector, II grade,

Place/Tehsil .......................

District ..............................

To

(Name, parentage and address of tenant)

Attached is a copy of the application made by your landlord for recovery of arrears of rent due from you.

You are now required, within a month of the receipt of this notice to :--

(1) deposit the rent or the value there-of (if rent payable in kid) in this court, or

(2) give proof of having paid the rent;

(3) give proof of not being liable to pay the whole or part of this demand; or

(4) give proof of the landlord's refusal to receive the rent or give a receipt for it.

If you fail to comply with the above orders, you will be ejected summarily from the land and your landlord put in possession.

Signed.............................

Assistant Collector, II Grade,

Place /Tehsil ...................

Date ................District ... ... ... ... ... ... ...

6. From a close perusal of the various provision of the Act, especially Secs. 6 to 16, one of the objects of the legislation discernible is that the relationship between the land-owners and their tenants was intended to be put to a sounder and more reasonable basis. Except the tenancies on the land reserved by the land-owners for their personal cultivation within the permissible limit or the small landowners as defied under the Act, right of the landowners to eject their tenants was restricted to only limited grounds. The continuity of the tenancies was assured under Section 8 of the Act despite the death of the landlord or the tenant. In accordance with Section 9, the tenant can be ejected only if he failed to cultivate the land under his tenancy without sufficient cause or carried on the cultivation therein such a manner that the land was rendered unfit for the purpose for which it had been leased out, or the tenancy as a whole or part thereof was sublet. The landlord was also conferred a right to eject his tenant if the tenant refused to execute a Qabuliyat or a Patta in favour of the landlord even when so ordered by the Assistant Collector on an application made by the landowner for this purpose. Beside this grounds, the landlord was also given the right to eject his tenant if the latter was proved to have defaulted in payment of rent regularly without sufficient cause. However, before the tenant could be ejected from his tenancy, the landlord was required to follow the mandatory procedure as prescribed under Section 14-A(ii) of the Act. If the tenant was in default of payment of arrears of rent, the land-owner could make an application before the Assistant Collector, II grade, having jurisdiction in the matter in accordance with Form 'M' as prescribed under Rule 22. On this application, before the Assistant Collector could pass an order of ejectment the pre-requisite to be satisfied was the service of a notice as prescribed in From 'N' on the tenant requiring him to pay the arrears of rent within one month of the notice. Thus in spite of existing arrears of rent and the tenant having not take proper steps to make the payment relating thereto, one opportunity was provided to the tenant to deposit or pay the arrears to rent. In case the demand of the landlord, as incorporated in the said notice, was wrong or false, wholly or partly, the tenant was give the opportunity to produce the necessary evidence to show that the payment of the alleged arrears of rent had already been made but the landlord had not executed the requisite receipt therefor or the landlord had refused to receive the payment in spite of the offer or the tender as the case maybe or that the demand of the landlord was excessive. In all these contingencies after considering the evidence produced on both sides, the Assistant Collector was to adjudicate on the matter regarding the payment of arrears of tent or otherwise in a summary manner. However, if the Assistant Collector came to the conclusion that the arrears of rent had not been paid by the tenant, it was mandatory on him to pass the order of ejectment. The peremptory nature of the duty of the Assistance Collector in this regard is quite evident from the following portion of sub-clause (ii) of Section 14-A of the Act :

'.........Where, after summary determination, as proved for in sub-sec (2) of Section 10 of the Act, the Assistant Collector finds that the tenant has not paid or deposited the rent, he shall eject the tenant summarily and put the land owner in possession of the land concerned.'

In the case it was found by the Assistant Collector that the landlord had refused to accept the rent from his tenant or demands rent in excess or that a receipt in lieu of the payment of rent was not being issued by the landlord, jurisdiction was conferred on the Assistant Collector under sub-clause (iii)(a) and (b) to proceed as the case may be and to issue necessary orders to the landlord.

7. From the above discussion, there can be no doubt that while the Legislature was anxious to protect the tenant from the arbitrary and unfettered power of the landlord to eject him, it was equally solicitous to guarantee the landlord regular payment of rent. The tenant has no legitimacy or right to continue in possession of the tenancy without payment of rent. The landlord could not be denied his rightful due in the form of rent as fixed or prescribed under the law and also the land belonging to him. The tenant, on the other hand, can carry on possession and cultivation of the land under his tenancy without disturbance so long as he continue to pay the lawful rent to his landlord. However, in spite of the default of the tenant to pay the rent and despite the fact that the fell in arrears one more opportunity was conferred on the tenant to pay or deposit the arrears of rent before an order of ejectment could be passed by the Assistant Collector. It is also significant to note that the period during which the arrears could be paid on the application of the landlord was not left to the discretion of the Assistant Collector concerned but was fixed by the Statute in the notice in Form 'N' as a period of one month from date of the notice. This was done in order to make clear the rights of both the parties beyond any pale of controversy or dispute.

8. According to the learned counsel for the respondent-tenants, even after one month's period as prescribed in the notice in Form 'N' has expired without any payment or deposit having been made by the tenant regarding the arrears of rent, it is mandatory for the Assistant Collector or at least in his discretion to give another opportunity for payment of deposit of the said arrears before the order of ejectment became effective and enforceable. The case of the learned counsel for the petitioners, on the other hand, is that despite default of the payment to deposit the arrears of rent, one more concession was given to such a tenant to make the requisite payment in the form of a notice under the statute but this concession or benefit cannot be extended by the Assistant Collector or the higher authorities in appeal or revision as none of these authorities has jurisdiction in this regard.

9. The provision of Section 14-A(ii) has been the subject-matter of interpretation in a number of decision in this court since 1962. Reliance has been placed on one decision or the other on either side in support of their respective contentions. It will be of advantage to make analytical study of the same. In Dhanna v. Sri Parkash, 1962 Pun LJ 96, the tenant did not make payment of arrears of rent in pursuance of the notice issued in Form 'N' under Section 14-A(ii) of the Act. Consequently the order of ejectment was passed. This was challenged in appeal before the Collector. On prayer for interim injunction during the pendency of the appeal, eviction order as passed by the Assistant Collector was also stayed. The appeal was finally dismissed by the Collector and 10 days' time was allowed to make the payment of the arrears of rent before the tenant could be ejected. The commissioner in appeal by the landlord set aside the order and held hat further extension of time could not be given. The same view was taken by the Financial Commissioner in revision by the tenant. On a writ petition under Article 226 of the Constitution of India by the tenant, it was held by Tek Chand, J. that the period fixed in the notice in Form 'N' issued under Section 14-A(ii) for the payment of arrears of rent was statutory and cannot be extended by the court. It was also held that section 148 of the Civil Procedure code was not attracted and the said provision could apply only in cases where the time was fixed or prescribed in the first instance by he Court. In Amar Nath v. Hans Raj 1966 Pun LJ 1, in reply to the notice in Form 'N' the tenant had objected that he was not the tenant of one of the alleged landlords though the other petitioners were his landlords and that he had paid rent for two crops and the remaining crops had been damaged on account of heavy rains. It was also contended that he had offered to make the payment of rent for the two crops but the same was not accepted by the landlord. The Assistant Collector after making inquiry rejected all these contention and directed the tenants to pay the rent as demanded by the landlord within one month. In appeal the Collector set aside this order and held that the Assistant Collector had no jurisdiction to extent the period specified in the statutory notice. This order was maintained both by the Commissioner and the Financial Commissioner in appeal and revision. In these circumstances, it was held by S. B. Capoor, J in the writ petition as under :---

'However, the terms of the statute seem to be mandatory and do not provide that after the summary determination some further time s to be allowed to the tenant to make the deposit of the rent. If the tenant does not care to make the deposit but puts forward pleas which are found to be frivolous he undertakes the risk of summary eviction. On this view of the matter the impugned order cannot be said to be without jurisdiction.'

10. In Atma Singh v. The Financial Commissioner, 1964 Pun LJ 67,Grover, J. in somewhat similar circumstances following the ratio of the decision in Dhanna's case (1962 Pun LJ 96)(supra), held that the Court of appeal or revision has no jurisdiction to extent the time for payment of arrears of rent. In Balwant Singh v. Sodhi Lal Singh, (1966) 68 Pun LR 380 : (AIR 1966 Punj 483), controversy under this very provision cropped up in somewhat different circumstances. Therein, the landlord had demanded a sum of Rs. 900/- as rent from his tenant and a notice of demand in Form 'N' was issued to he tenant. In reply, the contention of behalf of the tenant, was that only Rs. 805/- was due. This contention was upheld by the Assistant Collector, Second Grade, who held thatthis amount was tendered by the tenant to the landlord before thedirection wasissuedby the Assistant Collector to accept the same. As the amount was not accepted by thelandlord, the tenant depositied the same two days after in the treasury, the intervenig twodays being holidays. It was in these circumstances that it was held bythe Division Bench that in case the demand of the landlord as embodied in the notice was excessive but even the part of the rent as admitted by the tenant was not deposited within the time fixed in the notcie, it was not obligatory on the tenant to comply with the notice evenwith regard to the rent so admitted and that the Assistant Collector had the jurisdiction to provide an opportunity to make the payment. In view of this finding while decidig the application of thelandlord. It was held as under :---

'The words in Section 14-A(ii) 'or give proof that he is not liable to pay the whole or part of the rent' and the similar words as appear in (3) in the demand notice, clearly mea that where the amount demanded by the landlord is in excess of the amount due, there is no obligation on the tenant to pay the amount which he admitsto be due before the matter had been determined by theAssistant Collector, and in this case, after the matter wasdecidedby the Assistant Collector in favour of the tenant and the court andnot accepted by the landlord the amount wasdeposited in the treasury on the next day on which it was open after the date of the determination of the Amount due.'

11. The ratio of this decision was followed by Pandit, J. in Ashok Kumar v. The Financial Commissioner, Revenue, Punjab, Chadigarh 1966 Lah LT 77.

12. The correctness of the above interpretation of Section 14-A(ii) has been challenged by the learned counsel for the petititioners. In my considered opinion the section 14-A(ii) the Assistant Collector has been given only the power to make inquiry into the objections which may be raised by the tenant with regard to the non-liabiliy to pay the arreas o rent whether wholly or partly but he had no jurisdiction to grant any further time if the tenants's contention is not up held. If the tenant admits part of the liability, it is his duty to mae payment othe samewithin the time specified in the notcie and challennge the excess part of the deamnd.Consequently, the view of the Division Bench in Balwant Singh's case (AIR 1966 Punj 483)(supra) aswell as ashok Kumar (1966 Lah Lt 77)(supra) wherein the said Division Bench was followed, to this extent, has to be set aside.

13. In Smt. Sham Kaur v.Financial Commissioner Revenue, Punjab 1974 Rev Lr. 25(Punj), in reply to the notice in Form 'N' arrears of rent asdemanded by the landlord were denied and the case othe tenantwasthat they were not liable to pay any rent.The Assistant Collector after heating both the sides came to the conclusion that Rs. 1164.22 p. were due from one tenant and Rupees 3019.71 p. from another tenant. The Assistant Collector on this decision give a specified time todepost the arrears so adjudicated upon.On the failure of the tenants to deposit the same, the order of the eviction was passed which was challenged by the tenants in further appeal. Therein interimstay order regarding eviction was passed. As the arrears of rent even after theorder of the Assistant collector were not deposited the order of eviction was passed against the tenants. The legality of this order waschallenged in a writ petition unde Art, 226 of the Constitution of India on the ground that the eviction proceedings having been stayed by he appellate as well as the revisional authroties, the period of 30 days as allowed to the tenant would run from the date of final order inrevision or in appeal.The Division of time to pay the arrears of rent canotbe exercised by any authority in appeal or revision, but without applying their mind specifically to the question whether thetime fixed in the original notice in Form 'N' could be further extended by the Assistant Collector at the time of determining the amount of rent and disposing of the application of the landlord finally, it was held as under :---

'The period for deposit of arrears of rent mentioned in the notice in form N cannot be extended by the appellate of revisional authority.There is no provision in thePunjab Security of Land Tenures Act which permits extension of this time. In order to save himself from eviction it is incumbent on the tenant to pay the amount within the time prescribed in the notice, or in case of dispute, as to the arrears of rent, forn the date of theorder of theAssistantn Collector fixing the amount of arrears of rent. In either event, it is the Assistant Collector whose action starts the statutory period of limitaion for deposit. But in appeal of revision, that power cannot be exercised.'

14. From the above ratio, it is sought to be interpreted on behalf of the tenants that though time given inthe ntoice cannot be extended by the appellate on the revising authority, the same can be and ought to be extended by the Assistant Collector while determining the liability of the tenant and disposing of the objections of the tenant at the time of passing of the final order.

15. The following observtion in the said case is also significant :---

'This Court has consistently taken the view that the period for deposit menioned in the notice in Form 'N' or the one prescribed in Thana Singh's case (1969 Pun LJ 194) cannot be extended by the appellate or the revisional authority.'

16. In the above Division Bench judgment, it was also held that the provision of this Act are analogous to those of the Punjab Rent Restriction Act in as much as if a tenant is in arrears of rent and does not pay the same at the first hearing, he has to suffer the eviction.

17. In Punjalal Bhagwanddin v. Bhagwatprasad Prabhuprasad, AIR 1963 SC 120, the appellant-tenant did not pay the arrears of rent from July 27, 1949 to July 5, 1954. On October 16, 1954, the landlord gave a notice to quite the premises on the ground that rent for over six months was in arrears.The appellant neither paid the arrears of rents nor vacated the premise. As a consequence, the respondent-landlords filed a suit for ejectment under S. 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The tenant-appellant though had not paid the retin reply to the notice of the landlord, paid the arrears of rent within two monhs of the institution of the suit and on hat ground claimed that the suit for eviction could notbe decreed. Their Lordships of the Supreme Could repelled this contention. It was observed as under :---

'The second contention that, the appellant's havig paid the arrears of rent within 2 months of the institution of the suit, there wold be no forfeiture of the tenancy has no force in view of the provision of Section 12 of the Act. Subsection (2) permits the landlord to institute a suit for the evition of a tenant on the ground of non-payment of rent after the expiration of one month from the servie of the notice demanding the arrars of rent, and clauses (a) of sub-section (3) empowers the court to pass a decree incase the rent had been payable by a month, there was no dispute about the amount of standard rent, the arrears of rent had been for a period of six months and thetenant had neglected to make the payment iwthin a month of the sevices of the notice of demand. The tenant's paying the arrears of rent after theinstitution of suit therefore does not affect his liability to evition and the Court's power to pass a decree for eviction. It is true that the expression used in clasue (a) of sub-sectio (3) is ' the Court may pass a decree for eviction inany such suit for revocery of possession' but this does not mean as contended for the appellant, that the Court has discretion to pass or not to pass a decree for evictio n in case te other condition mentioned in that clause are satisfied. The landlord became entitled to recover possesion when the tenant failed to pay rent and this right in him is not taken away by any other provision in the Act. The court is therefore bound in law to pass the decree when the requirements of sub-section (2) of Section 12 are satisfied. This is also clear from a comparison o the landugage used in clause (b) of sub-section (3) which deals with a suit for eviction which does not come within clause (a) and provides that no decree for eviction shall be passed in such a suit if on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in court the standard rent then due and thereafter continues to pay or tender in Court regularly such rent till the suit is finally decided and also pays costs of the suit as directed by the Court. It is clear that where the legislature intended to give some benefit to the tenant on account of the payment of the arrears during the pendency of the suit, it made a specific provision. In the circumstances, we are o the opinion that the Court has no discretion and has to pass a decree for eviction if the other condition of sub-section (2) of Section 12 of theAct are satisfied.'

18. From the above statement of law by the Supreme Court, it can be clearly held as setteld that where the Legislature intends to give some benefit to the tenant in the matter of paymento arrears of rent the same is specifically provided and it is not permissible to the courts to travel beyond its limits. Under Section 14-A(ii) of theAct in spite of default of the tenant to pay the arrears of ret 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 regardig non-existence on the relationship of landlord and tenant, non-liability of the arrears in whole or in part or even the alleged payment of arrears though the same way 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 and thereafter when the objections regardig 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. It 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 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 intime as specified, he has himself to blame. The statute in fact while prescribing the period of one month in Form 'N' unambiguously tells he tenant that he can make the payment within one month of the notice or he wil 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.

19. Under Section 13 of the East Punjab Urban Rent Restriction Act also, the tenant can be ejected on the ground of non-payment of arrears of rent but therein also he has been granted one opportunity inasmuch as if he pays the arrears on the first hearing of the eviction application ejectment canot be ordered on the ground of non-payment. It has been the consistent view of this court that if payment of rent is not made on the first hearig, the subsequent payment or the contention that the demand of the landlord was excessive cannot protect him from ejectment when the part of the rent is not paid on the first hearing.

20. In Parkesh Nath Vatsa v. Uttam Chand Chadha, (1963) 65 Pun LR 1116, H. R. Khanna, J., the celebrated and renowned judge, who subsequently adorned the Supreme Court, held while discussing the scope of Delhi and Ajmer Rent control Act, which is couched in similar terms as the Rent Restriction Act in Punjab held as under :---

'The fact that the landlord had in his notice demanded excessive amount asarrears of rent from the tenant does not absolve the tenat from paying the arrears of rent which were in fact due from him. There is no justification for the tenant to remain silent and not to pay even the amount which, according to him, was due after the noticr of demad had been given to him.'

In Dial Chand v. Mahant Kapoor Chand, (1967) 69 LR 248, Mehar Singh C. J., while declaring that proviso to clause (I) of sub-section (2) of Section 13 of the East Punjab Urban Restriction Act, 1949 was for the benefit of the tenant, held that if the tenant wanted to take advantage of this benefit, he is required to comply with it strictly and in case there was a dispute as to the quantum of rent, the following three courses were open to him:

'He can under protest make payment or tender of the arrears at the rate claimed by the landlord in the ejectment application, and if rate is found subsequently to be less, he can hope or adjustment of the excess payment. He can come forward with a straight statement of what is the true rate of rent and on that proceed to comply with the proviso, in which case he has the benefit of the proviso, if the finding is that the rate stated by him is the rate of rent for the tenacy. Lastly, he can enter into a dispute with the landlord, as in this case, and insist upon his lower rate of rent and then take the consequence if he is not able to prove that that is the actual rent. If he fails to establish this ground, obviously he fails tohave advantage of the proviso,'

21. On behalf of the tenants, the impugned order of the Financial Commissioner is sought to be supported on the additional twin grounds that it was held that the rent for the Rabi crop 1964 was time barred and as such it could not be construed as due and inarread and secondly that some rent had been deposited at the time an appeal by the tenants was pending before the Collector on remand. In view of these two findings, it is urged that the order of ejectment cold notbe passed by the Collector without giving further time to the tenant. Neither of these two contentions is of any avail. Legally any rent which is not paid remains due and as such in arreas though the limitation forits recovery through suit or other proceedings in the Court of law may have expired. Remedy to recover a debt, rent or other dues through a Court of law having been lost by lapse of time as prescribed does not ipso facto result in lapse of right relating thereto. In Rulia Ram v. S. Fateh Singh, (1962) 64 Pun LR 255: (AIR 1962 Punj 256)(FB) the Full Bench of this Court, while pronouncig on the scope of the arrears of rent under the Rent Restrictions Act, observed as under :---

'The law of limitation does not extinguish the arears of rent which are beyond the period of limitation and they are all the time due from a tenat and are owing to the landlord. They are technically arrears of rent and what the proviso talks of is that in order to save himself from eviction the arrears of rent have to be deposited. The proviso does not talk of arrears of rent that are with in limitatio and there is no reason to give a restricted meaning to the proviso, particularly when the restricted meaning would not be in consonance with justice and equity, but on the other hand give the tenant benfit of his own default.'

22. It was also held by their Lordships of the Supreme Court in Khadi GramUdyog v. Shri Ram Chandraji Virajman Mandir, AIR 1978 SC 287, that the words 'entire amount of rent due' in section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) act would include the rent which had become time-barred. It was further held that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the right. Thus the impugned order by the Financial Commissioner that the rent for Rabi Crop 1964 cannot be treated as arrears of rent only on the ground that the same was time barred cannotbe sustained.

23. Regarding the other contention that the payment of rent after the expiry of time as specified in the notice during the pendency of the eviction proceeding will also result in protecting the tenant from ejectment had also tobe repelled as the same is not based on any accepted legal principle or precedent. The principle of law stands well settled by the following ratio of the Full Bench in Kalu Ram alias Gurcharan Das v. Gonda Mal, 1980 Ren CJ 597 : (AIR 1980 Punj & Har 140) :---

'If once it is proved that a tenant has failed to pay the arrears on the first date of hearing, he is liable to ejectment, though he might have paid the said arrears subsequently to the landlord, which he was entitled to recover under all eventualities. It does not lie in the mouth of the tenant to say that since the payment of the arrears had been made, therefore, the ground of non-payment of rent is not available to the landlord at the time of the order of ejectment.'

This is in consonance with correct interpretation of the legal principle involved as any other interpretation will be tantamount to putting premium on the uncondoable non-compliance on the part of the defaulter to make the payment within a specified time.

24. It was submitted with a good deal of emphasis by the two learned counsel on behalf of the tenant-respondents that the decision of this Court interpreting Section 13 of the East Punjab Urban Rent estriction Act relating to the payment of arrears of rent of the first date of hearing as discussed above, are not of any relevance and have no bearing while interpreting Section 14-A(ii) of the Act, as the provision under the said Acts are not only not identical but materially different in pith and substance. A close perusal of the two provisions, how-ever, makes it evident that this contention is not sustainable. Under the Rent Restriction Act, an application for ejectment of the tenant by a landlord cannot be allowed and the order of ejectment cannot be passed if the tenant tenders or deposits the arrears of rent on the first date of hearing after notice of the eviction application. Under Section 14-A(ii) of the Act, though the application is not for ejectment as such on the ground of non-payment of arrears of rent or the produce, as the case may be, but only for getting the arrears of rent of the produce, yet on the said application notice of demand is to be served by the Assistant Collector, II Grade, on the tenant who is required to deposit the arrears of rent within one month of the notice. In case the same is not deposited within the prescribed time and the objections of the tenant regarding non-liability to pay the arrears are set aside, the order of ejectment has to follow. Thus the only difference in the two provision is that under the Rent Restriction Act, the tenant is given the opportunity to pay the arrears of rent on 'the first date of hearing' of the ejectment application, and under the Act the arrears of rent have to be paid within one months of the service of the notice of demand on the tenant. Under both the statutes, the authority concerned does not have the power of passing the order of ejectment if the arrears of rent are paid or deposited within the time prescribed under each of the two statutes. The legal provision is basically identical in the two statutes in spite o the different in the language employed and the time for payment having been specified in a different manner.

25. It is then urged that under Section 14-A(ii) of the Act, the tenant has been conferred the right to raise a dispute regarding his liability to pay the whole or part of the rent as demanded by the landlord and also to adduce evidence in proof thereof. As such, it is inherent that the opportunity to pay the rent can be availed of by the tenant only when his objection have been finally disposed of and not sustained by the Assistant Collector. The tenor of the argument appears to be that the notice of demand appears to be that the notice of demand by the Assistant Collector regarding the arrears of rent pre-supposes the demand as made by the landlord is correct and beyond dispute. Such a stage can be reached only when all the contentions raised on behalf of the tenant have been finally settled. The apparent plausibility of the argument however, cannot bear deeper scrutiny. The language of the provision is quite plain and unambiguous and does not admit of this far-fetched interpretation. As soon as the notice of demand is served on the tenant, he must make up his mind finally regarding his liability about the arrears of rent demanded. If he is on a firm footing that no arrears are due, he can take his chance and may not make any payment but under the garb of the right of raising a dispute, the tenant cannot delay the payment of rent which is already in arrears by prolonging the proceedings indefinitely. After the conclusion of the inquiry by the Assistant Collector, no fresh notice of demand and the opportunity to the tenant to make payment is contemplated under the provision. If this approach is accepted, the tenant will be always too ready to put forth the plea that the demand regarding the amount of arrears of rent to put forth the plea that the demand regarding the amount of arrears of rent is excessive though the extent of excess as alleged may be a very negligible one which may also be ultimately found on scrutiny to be unsubstantiated. As an illustration if demand of the landlord regarding the arrears of rent is for an amount of Rs. 10,000/-, the tenant in order to claim immunity from making any payment whatsoever during the pendency of the inquiry may contended that the demand is excessive only by Rs. 500/- or even less. Such an interpretation of the provision cannot be consistent with the scheme of the Act and the intention of the Legislature.

26. Lastly it was emphasized that the powers of the appellate Authority or the revising Authority in appeal or in revision cannot be less than those of the Assistant Collector, II Grade, regarding extension of time to make the payment of the arrears of rent when the order of the Assistant Collector is subject to appeal or revision as the case may be. It is well settled that the proceedings in appeal or revision are continuation of the original proceedings and the power of the appellate of the revising Authority are essentially co-extensive with the powers of the original Authority if not wider in scope. Viewed from this principle or law, it haw to be agreed that in case the Assistant Collector has the jurisdiction to extent the time regarding payment of the arrears of rent the appellate and the revising Authority will also be invested with the same powers. However, in view of the above discussion, there in no justification to subscribe to the view that after the expiry of the statutory period as prescribed in the notice of demand regarding the payment of arrears of rent, the Assistant Collector has any jurisdiction or power to extend the time after conclusion of the inquiry and holding that the objection raised by the tenant regarding non-liability have no substance or truth.

27. The upshot of the above discussion is that the effect of the combined reading of Section 14-A(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 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 raided 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 (AIR 1966 Punj 483)(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 it set aside. Similarly in the ratio of decision in Smt. Sham Kaur's case (1974 Rev LR 25)(Punj)(supra) correct law was not laid down in holding though indirectly, that the Assistant Collector, II Grade, had the jurisdiction to extent time for payment of arrears of rent by the tenant though the period as prescribed in the notice of demand under Form 'N' had already expired.

28. In view of the above conclusion regarding the scope and ambit of Section 14-A(ii) of the Act, it is held that the order of eviction by the Collector, dated 15th February, 1971(Annexure F) without providing any fresh opportunity to the tenant to make payment of the arrears of rent as found due did not suffer from any infirmity. In fact the tenants after having raised a number of objection at the earlier stages for a number of years admitted the relation of landlord and tenant and also the liability to make payment of the arrears of rent as demanded by the landlord before the Collector at the time order (Annexure F) was passed. This order was validly upheld by the Commissioner, Jullunder, Division, by his order dated 28th July, 1971(Annexure G).

29. In this view of the matter, the order of the Financial Commissioner, dated 10th January, 1972(Annexure H) setting aside the order of the Collector and the Commissioner and allowing fresh opportunity to the tenant to make payment of the arrears of rent has to be set aside. It is ordered accordingly and the writ petition is allowed in these terms. In view of the conflict of the decision of this Court, there will be no order as to costs.

S.S. Sandhawalia, C.J.

30. I agree.

Sukhdeo Singh Kang, J.

31. I agree.

32. Petition allowed.


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