Skip to content


Faqir Chand Anant Ram Vs. Gopi Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 2948 of 1960
Judge
Reported inAIR1962P& H117
ActsConstitution of India - Articles 226 and 227; Punjab Security of Land Tenure Act - Sections 14-A(I); Government of India Act, 1915 - Sections 107; Constitution Act, 1915 - Sections 107; Code of Civil Procedure (CPC), 1908 - Sections 115; Punjab Tenancy Act - Sections 70 and 72
AppellantFaqir Chand Anant Ram
RespondentGopi Chand and ors.
Cases ReferredNagendra Nath v. Commissioner of Hills Division
Excerpt:
.....liked, seek his remedy separately for this purpose. this objection is based on the contention that article 227 of the constitution also confers a writ jurisdiction like article 226, and, therefore, the authorities to whom a writ is to go from this court must be impleaded as respondents. rameshwar dial, air 1959 punj 189. out of these three decisions, the first one is the only relevant authority, the other two being cases of article 226 of the constitution and therefore clearly distinguishable. administrator general of west bengal, air 1960 sc 936.i, however, find that the observations in the judgment in phalgu datt's case fail to take into consideration the principle laid down by the supreme court and by a division bench of this court. 115 of the code of civil procedure, it is well..........that the amount of compensation had been rightly determined by the assistant collector.the learned commissioner, on revision, was also addressed by the landlord on this point, and it was argued that the tenants had already been compensated for the improvements, if any, effected by them by the sale of fruits over a number of years. the learned commissioner disposed of this contention by observing that these questions are questions of fact and findings of the two officers below being concurrent there was no scope for interference on revision. reliance was placed before him on section 72(e) of the punjab tenancy act, but the learned commissioner rightly pointed out that this sub-section was wholly inapplicable to the case before him. before the learned financial commissioner the contention.....
Judgment:
ORDER

(1) This is an application under Article 227 of the Constitution of India directed against the order of the Financial Commissioner dismissing the petitioner's revision and affirming the order of the Commissioner Jullundur Division who had in turn affirmed the order of the Collector who has also upheld the order of the Assistant Collector refusing to allow the petitioner a set off claimed by him.

(2) According to the allegations contained in the petition under Article 227 of the Constitution, the petitioner Fakri Chand had applied on the 1st March, 1958 under Rule 22 read with Section 14-A(I) of the Punjab Security of Land Tenure Act for the ejectment of tenants from land measuring 36 kanals 8 marlas situated in Tika Sukhar Chaudhrian, Mauza Majra, Tehsil Nurpur. The ground on which the petitioner had claimed ejectment was that the tenants had not paid rent regularly without sufficient cause from 1952 to 1955 and also thereafter from Kharif 1955 to Rabi 1956. The tenants controverted this allegation alleging that they had not refused to pay rent but they could not do so because the petitioner was not residing in the village. They claimed a sum of Rs. 5,000/- by way of compensation for improvements in case they were ordered to be ejected. During the trial, however, according to the petition, it was admitted by the tenants that they had not paid the rent due. On the question of compensation, it appears that a local commissioner was appointed according to whose report a sum of Rs.1,837,50 nP. was assessed to be the cost of improvements. It was reported that the tenants has planted about 105 sangtra plants, one galgal plant, five berry trees, two mulberry trees and seven Tuhni trees. The Assistant Collector, however, reduced the amount to Rs.1,548/-.

The petitioner had also urged that in accordance with the provisions of Secs.70 and 72 of the Punjab Tenancy Act he was entitled to claim a set off on account of arrears of rent. According to the petitioner, the Assistant Collector did not comply with those provisions and passed an order assessing the compensation at Rs.1,548/- in round figures with the observations that the compensation for the improvements made by the respondents could not be set off in the proceedings before him against the rent for which the applicant should seek his remedy separately. This order was challenged in appeal to the Collector, but the appeal was rejected holding the assessment of compensation by the Assistant Collector to be just and correct. According to the order of the Collector the counsel for Fakir Chand petitioner had contended on appeal that the benefit of fruits derived by the tenants should be deducted out of the compensation, but with this contention the Collector did not agree, holding that the tenants on ejectment were entitled to the cost of improvements under the Punjab Tenancy Act and the planting of fruit trees was an improvement as defined in the said Act. It is alleged in the petition filed in the Court that the Collector was wrong in not allowing a set off even though it was strenuously argued before him.

(3) Against the Collector order a revision was taken to the Commissioner where also the question of set off was specifically taken but the revision was rejected without considering this question. The order of the learned Commissioner shows that on behalf of the landlord it was contended that the tenants had already been compensated for improvements, if any, effected by them by the sale of fruits over a number of years. This argument was, however, disposed of by the learned Commissioner by observing that the question agitated related to facts upon which the concurrent findings of the Collector and the Assistant Collector had been given against the landlord and there was no cogent reason to interfere with them. Section 72(c) of the Punjab Tenancy Act on which reliance appears to have been placed before the Commissioner was held not to be applicable to the present case.

(4) A further revision to the Financial Commissioner met no better fate. From the order of the Financial Commissioner, dated 28th May, 1960, it appears that the landlord repeated his contention that the tenants had sold the fruits and the costs thereof should be set off against the compensation due to the tenants. This argument was disposal of by the Financial Commissioner with the remark that there was not enough data on the existing record for the purpose and therefore in the summary proceedings under Section 14-A this question could not be gone into. The Financial Commissioner also noted that the Assistant Collector had held as per his order dated 30th December 1958 that the present petitioner could, if he so liked, seek his remedy separately for this purpose. The Financial Commissioner thus found no justification of interference on revision. As stated earlier, it is these orders which are being assailed in the present petition under Article 227 of the Constitution, and reliance is mainly placed on Ss 70 and 72 of the Punjab Tenancy Act.

(5) On behalf of the respondents two preliminary objections have been raised. In the first instance it is contended that the officers whose orders are being challenged, namely, the Financial Commissioner, the Commissioner, the Collector and the Assistant Collector are necessary parties to the present proceedings but they have not been impleaded. This, according to the respondents, is a fatal defect entailing rejection of the petition without going into the merits. This objection is based on the contention that Article 227 of the Constitution also confers a writ jurisdiction like Article 226, and, therefore, the authorities to whom a writ is to go from this Court must be impleaded as respondents. Reliance in support of this contention is placed on Phalgu Datt v. Smt. Pushpa Wanti, 1960-62 Pun LR 302: (AIR 1960 Punj 432): Hoshiarpur Azad Transporters (Private) Ltd. v. State of Punjab, 1960-62 Pun LR 409: (AIR 1961 Punj 374); and Delite Cinema v. Rameshwar Dial, AIR 1959 Punj 189. Out of these three decisions, the first one is the only relevant authority, the other two being cases of Article 226 of the Constitution and therefore clearly distinguishable. Secondly, it is contended that the copies, and on this ground also the petition deserves to be rejected. In this connection it is argued that a petition under Article 227 of the Constitution closely resembles a petition for revision under section 115 of the Code of Civil Procedure and therefore the copies to be filed with the petition must be properly certified according to law. In support of this contention reference has been made to Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832.

(6) Now, so far as the first objection is concerned, it is true that a learned Single Judge of this Court has held in Phalgu Datt's case, 1960-62 Pun LR 302: (AIR 1960 Punj 432) that even in a petition under Article 227 of the Constitution the authorities, whose orders are challenged, must be impleaded as parties, and that there is no difference in principle or analogy to the case of a writ under Article 227 which partakes of the essential characteristics of a writ of certioari which is the subject-matter of Article 226. If the matter rested here, then I would have either respectfully followed this decision or, in case of difference of opinion or disagreement, referred the matter to a larger Bench, for, in the interest of certainly and judicial decorum and harmony no Judge of co-ordinate jurisdiction should take upon himself to disagree with or ignore an earlier decision of another Judge: See Mahadeolal Kanodia v. Administrator General of West Bengal, AIR 1960 SC 936.I, however, find that the observations in the judgment in Phalgu Datt's case fail to take into consideration the principle laid down by the Supreme Court and by a Division Bench of this Court. The Supreme Court (S. R. Das, C. J., and Hidayatullah and K. C. Das Gupta JJ.) had an occasion to consider the scop and effect of Article 227 in Satyanarayan Laxminarayan v. Mallikarjun Bhavanappa, 1960 (1) SCR 890: (AIR 1960 SC 137). K. C. Das Gupta. J., speaking on behalf of the Court, in the reported case made the following instructive observations:

'We have noticed that in the application to the High Court the respondent asked that Court to exercise its power of superintendence under Article 227 of the Constitution by the method of issuing a writ of certiorari or any other suitable writ. Article 227 corresponds to Section 107 of the Government of India Act,1915.The scope of that section has been discussed in many decisions of Indian High Court. However wide it may be that the provisions of Sec.115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything, it may merely be an erroneous decision which, the error not being 'apparent on the face of the record, cannot be corrected by the High Court in revision under Section 115 of the Code of Civil Procedure or under Article 227.'

It is obvious that, according to these observations, Article 227, corresponding as it does to Section 107 of the Constitution Act of 1915, would seem to resemble the power of revision conferred by S. 115, Code of Civil Procedure, though in some respects it is perhaps a little wider in its scope than the latter provision. In Raj Kishan Jain v. Tulsi Dass, ILR 1959 Punj 859: (AIR 1950 Punj 291) a Division Bench of this Court held that an order passed under Article 227 of the Constitution is covered by the exception given in clause 10 of the Letters Patent and, therefore, unlike an order passed on the original side on a petition for a writ under Article 226 of the Constitution is not appealable to a Letters Patent Bench. Section 107 of the Constitution Act of 1915 was never considered by the Lahore High Court to have conferred a writ jurisdiction on the Court. It was only meant to vest the High Court with a power of superintendence which included judicial superintendence exercisable in exceptional cases not covered by Section 115, Civil Procedure Code, in order to prevent grave and irreparable injustice: Sec Firm Ganesh DassShankar Lal v. Firm Asa Nand-Radhe Sham, AIR 1933 Lah 259, Lalta Devi v. Balkishan Chopra, AIR 1933 Lah 327; Behair Lal v. Sardari Lal, AIR 1933 Lah 605: Kundan Lal v. Ram Chand, ILR 15 Lah 80: (AIR 1934 Lah 156) and Charar Bhuj v. Emperor, AIR 1930 Lah 889.

(7) it is true that Article 227 of the Constitution is wider than section 107 of the Constitution Act of 1915 inasmuch as it brings within its fold all tribunals within the territorial jurisdiction of the High Court and is no confined merely to Courts subordinate to it, but this by itself does not seem to me to attract all the incidents which attach to applications for prerogative writs etc., under Article 226, such as the imperative necessity of impleading the authorities whose orders are assailed in this Could under Article 227. I am fully alive to the fact that in some High Courts aggrieved petitioners sometimes describe the reliefs claimed under Article 227 to be in the nature of writs etc., but that, in my opinion, is not enough to justify dismissal of all petitions under Art. 227 merely because the authority, whose order is sought to be set aside, has not been impleaded in the High Court. The marginal head-notes of Articles 226 and 227 of the Constitution and the language in which these Article 227 is intended to postulate issuance of any writs etc., in the technical sense, for which purpose Article 226 appears to have been incorporated in our Constitution. Rules framed by this Court in the matter of writs etc., also do not seem to cover applications under Article 227 of the Constitution.

It would not be out of place here to notice a Single Bench decision of the Allahabad High Court in Ram Prasad v. State, AIR 1952 All 843, relied upon by the learned counsel for the respondents, where it has been observed that in the exercise of the powers of superintendence under Article 227, the High Court cannot exercise the powers exercisable under Article 226. The learned Judge in the reported case pointed out the practice of the Allahabad High Court in treating and dealing with petitions under Articles 226 and 227 differently. In this Court also petitions under these two Articles are being treated in practice and dealt with differently. May be that prayers resembling those for writs etc., are not prohibited by statute or otherwise from being also claimed under Art. 227, which is broadly worded, and at times Courts actually grant such reliefs under this Articles in exercise of the power of superintendence, but, then, on that view, the question would have to be determined by considering the precise relief claimed and grantable in each case. Every petition under Article 227 even on that view may not be liable necessarily to be thrown out on the sole ground of non-impleading of the authority concerned.

But be that as it may I would perhaps have still decided to refer this question to a larger bench if I had not come to the conclusion that on the merits also this petition must fail. As a matter of fact, even if I had agreed with the view expressed in Phalgu Datt's case, 1960-62 Pun LR 302: (AIR 1960 Punj 432), I would in all probability have felt inclined to permit the petitioner now to implead the authorities concerned, for, in absence of a clear and well-recognised practice applicable to petitions under Article 227 of the Constitution I would hesitate to refuse to grant relief to a citizen merely on the ground of omission to implead the authorities concerned, if, otherwise, on the merits, the justice of the case demands or warrants interference. Here it is pertinent to point out that suo motu interference under Article 227 is also legally permissible without any formal application, and, if that be so, then in a fit case the Court should not hesitate to allow impleading of parties if notice to them is considered necessary.

(8) The second objection raised by the respondents also to some extent detracts from the strength of the first preliminary objections, for, if this petition is to be treated to be analogous to a revision petition, then prima facie the question of the parties to be necessarily implealded may also have to be determined on the same basis. In revision, it is not shown to me by reference to any precedent that a petitioner has over been non-suited for omission to implead the tribunal whose order is sought to be revised, or even that such a tribunal is a necessary party to the revision. If the present petition is to be treated as a petition for a prerogative writ, the, according to the practice usually followed in this Court, copies of the relevant orders attested by the parties are accepted by the office. In so far as petitions under Article 227 are concerned, copies of the orders of the judicial or quasi-judicial tribunals should, in my view, be duly attested copies, as contemplated by the Supreme Court decision in Jagar Dhish Bhargava's case, AIR 1961 SC 832 but, since the office of this Court has accepted the copies attached by the petitioner and the Motion Bench has also issued notice, I would be disinclined to non-suit the petitioner on this ground at this stage. I may here mention that it is not contended that the copies filed are not true copies of the original orders. It is, however, desirable that some definite rules should be framed on this point for the guidance of the office and the litigant public.

(9) Coming to the merits of the controversy the learned counsel for the petitioner has contended that the impugned orders are in violation of the provisions of sections 70 and 72 of the Punjab Tenancy Act which are mandatory in nature. He has also relied on section 14A of the Security of Land Tenures Act and rule 22 of the Punjab Security of Land Tenures Rules, as added in 1956. Section 70 of the Punjab Tenancy Act deals with the determination of compensation in a suit by a tenant to contest his liabilities to ejectment or in a suit by a landlord to eject to a tenant or to enhance his rent. In such cases the Court can determine the compensation to be paid to the tenant for improvements or for disturbance when decrees for ejectments of the tenant or for enhancement of the rent are passed. Under section 72 in estimating the compensation to be awarded under Chapter VI of the Punjab Tenancy Act, the Court is to have regard to, inter alia, the amount by which the value or the produce of the tenancy, or the value of that produce is increased by the improvement and the condition of the improvement and the probable duration of its effects.

Section 14-A of the Security of Land Tenures Act lays down that notwithstanding anything to the contrary contained in any other law for the time being in force, and subject to the provisions of section 9-A of the Security of Land Tenures Act, a land-owner desiring to eject a tenant under this Act has to apply in writing to the Assistant Collector, First Grade, having jurisdiction, and the Assistant Collector is thereafter to proceed as provided for in section 10, sub-sections (2) and (3), of the Act. The rights of the tenant no compensation under the Punjab Tenancy Act are not affected by these proceedings. It is contended on behalf of the petitioner that it was incumbent on the revenue officers to determine the benefit which the tenant had enjoyed on account of the improvements, and that the value of such benefit should have been deducted from the compensation held to be payable to the tenant.

(10) On behalf of the respondents, however, it has been argued that, according to the order of the learned Financial Commissioner, there is not enough data and evidence on the present record to determine this question in the present proceedings. It is, therefore, urged that on the existing record no case is made out for interference under Article 227 of the Constitution.

(11) After considering the arguments advanced and going through the orders of the various tribunals, in my opinion no sufficient ground has been made out for interference under Article 227 of the Constitution. Before the Assistant Collector it was urged by the landlord that the price of the orange plants sold by the tenant from 1955 to 1958 should be deducted from the amount of compensation to be paid by the landlord. The Assistant Collector, however, disagreed with this contention on the ground that compensation for the improvement made by the respondents could not be set off against rent, in the present application and, the landlord was left to seek his remedy separately. On appeal before the Collector the counsel for Fakir Chand (petitioner in this Court) again contended that the benefits of fruit derived by the tenants should be deducted out of compensation. The Collector also disagreed with this contention and held that the amount of compensation had been rightly determined by the Assistant Collector.

The learned Commissioner, on revision, was also addressed by the landlord on this point, and it was argued that the tenants had already been compensated for the improvements, if any, effected by them by the sale of fruits over a number of years. The learned Commissioner disposed of this contention by observing that these questions are questions of fact and findings of the two officers below being concurrent there was no scope for interference on revision. Reliance was placed before him on section 72(e) of the Punjab Tenancy Act, but the learned Commissioner rightly pointed out that this sub-section was wholly inapplicable to the case before him. Before the learned Financial Commissioner the contention was repeated but, as already observed, he was of the view that there was not enough data on the record to come to any finding about the value of the sale of the fruits made by the tenants sought to be set off by the landlord against the compensation payable by him to the tenants.

(12) In view of these findings I do not think it is open to this Court to interfere under Art. 227 of the Constitution, for, as has been laid down by the Supreme Court, the power of judicial interference under this Article with orders of judicial or quasi-judicial nature are not greater than those under Article 226. Under the latter Article the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record, but under Article 227 the power of interference is limited to seeing that the tribunal functions within the limits of its authority: see Nagendra Nath v. Commissioner of Hills Division, AIR 1958 SC 398.And then powers under Article 227 have always to be exercised most sparingly and only in appropriate cases, and this power is clearly not meant for correcting mere errors of face or even of law. In the case in hand it has not been shown that the officers in hand it has not been shown that the officers concerned have in any way travelled beyond the scope of their jurisdiction or have erroneously refused to perform their duty imposed upon them by law. Assuming, without holding, that their orders are erroneous, that would not by itself warrant correction of the error under Article 227 of the Constitution. I am, however, not even convinced that the impugned orders are clearly and manifestly erroneous, though I am basing my decision mainly on the ground that there is no occasion for interference under Article 227.

(13) For the reasons given above this petition fails and is hereby dismissed. In the peculiar circumstances, however, there will be no order as to costs.

(14) Petition dismissed


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //