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Waryam Singh and ors. Vs. the Financial Commissioner, Haryana, Chandigarh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 3027 of 1978
Judge
Reported inAIR1980P& H177
ActsPunjab Security of Land Tenures Act, 1953 - Sections 9, 9(1), 10 and 14-A; Punjab Tenancy Act, 1887 - Sections 80, 86 and 86(2); Code of Civil Procedure (CPC), 1908 - Order 6, Rule 15
AppellantWaryam Singh and ors.
RespondentThe Financial Commissioner, Haryana, Chandigarh and ors.
Cases ReferredFauja Singh v. Mohinder Singh
Excerpt:
.....authorizes baldev singh to initiate proceedings, sign documents and file affidavits. a recognized agent like a 'general attorney' properly authorized is fully competent to file and pursue an, ejectment application, so, in the present case, both the applications were validly made......nagar, district kathua (j. & k.).' beneath the place meant for signatures on the form r-1, beldev singh signed. the other petitioners had not signed there. the power of attorney was in favour of baldev singh and put on the record along with the application on form k-i. both the parties went to trial. they led evidence. on behalf of the petitioners, statements of the patwari and baldev singh, petitioner, were recorded. it was stated by them that the land in dispute was the entire land owned by the petitioners in the states of punjab and haryana and they were small land-owners. however, the assistant collector relying on a decision of the financial commissioner in atma ram v. smt, saini bai, 1967 pun lj 289, dismissed the ejectment application on the ground that it was signed by baldev.....
Judgment:
ORDER

1. Civil Writ Petitions Nos. 3027 and 3028 of 1978, raise the common questions of law and fact end, therefore, they will be disposed of by this judgment.

2. The facts of Civil Writ Petition No. 3027 of 1978, are reproduced for a proper appreciation of the points raised in these writ petitions.

3. Sultan Singh, father of Waryam Singh, Raghbir Singh, Parmodh Singh and Baldev Singh, the present petitioners, had been allotted land in village Hijranwan Khurd. Tehsil Fatehabad, District Hissar. He was a small land-owner. On his death, the petitioners inherited this land measuring about 25 acres. It was mutated in their names. The petitioners are small land-owners.

4. Raghbir Singh, Parmodh Singh, petitioners, are employed in the Army. Waryam Singh, petitioner, is an ex-service man, and he resides in Sube-Chak, Tehsil Hira Nagai, District Kathua (J. & K.). These three petitioners executed a general power of attorney in favour of their fourth brother, namely Baldev Singh, petitioner. They authorized him to initiate ejectment proceedings in the competent Court against their tenants. Clause (3) of the power of attorney, which has been appended to this petition reads as under:--

'To eject any tenant or tenants from a Fart or whole of land mentioned above; initiate proceedings in the courts concerned, engage lawyer, adduce statements, sign documents, file affidavits, and obtain and produce record before the court concerning the said land and house, get decree, execute the same through concerned department or with the help of police as the case may be and take possession of the land from tenant or tenants.'

On the authority of this power of attorney Baldev Singh, petitioner, made an application on Form K-1, prescribed by the Punjab Security of Land Tenures Rules, 1956 (hereinafter called 'the Rules') framed under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act), read with Section 9(1)(i) of the Act for ejectment of Chamba Ram and Ganda Ram, respondents Nos. 4 and 5, who are tenants under the petitioners on 53 kanals and 16 marlas of land. In the application, it was mentioned that the petitioners are small land-owners and the land is in possession of the tenants. Col. I of Form K-1 requires full name parentage and address of the applicant to be mentioned therein. The petitioners scribed in that column: 'Waryam Singh, Raghbir Singh, Baldev Singh and Parmodh Singh sons of Sultan Singh son of Partap Singh through Baldev Singh for self and as Mukhtiar-i-am of petitioners Nos. 1, 2 and 4 and residents of Sube-Chak, Tehsil Hira Nagar, District Kathua (J. & K.).' Beneath the place meant for signatures on the Form R-1, Beldev Singh signed. The other petitioners had not signed there. The power of attorney was in favour of Baldev Singh and put on the record along with the application on form K-I. Both the parties went to trial. They led evidence. On behalf of the petitioners, statements of the Patwari and Baldev Singh, petitioner, were recorded. It was stated by them that the land in dispute was the entire land owned by the petitioners in the States of Punjab and Haryana and they were small land-owners. However, the Assistant Collector relying on a decision of the Financial Commissioner in Atma Ram v. Smt, Saini Bai, 1967 Pun LJ 289, dismissed the ejectment application on the ground that it was signed by Baldev Singh alone and not by all the 'land-owners. Aggrieved by this order, the petitioners filed an appeal before the Collector, Hissar. They relied on a decision of Shri M. L. Batra, Financial Commissioner, Haryana, dated the 18th January, 1971, wherein he had taken a contrary view and had held that the ejectment application if signed by one of the land-owners on his own behalf and as general attorney of the other landowners was competent. The Collector accepted the contentions of the petitioners and allowed the appeal and set aside the order of the Assistant Collector. The tenant-respondent No. 4 filed an appear before the Commissioner. He accepted the same and set aside the order of the Collector dated 24th December, 1973. He did not take into account column No. 1 of the application on Form K-1 and erroneously held that since Baldev Singh signed on his own behalf and not on behalf of his brothers, the application was maintainable. He also relied on a decision of the Financial Commissioner in Fauja Singh v. Mohinder Singh, 1975 Pun LJ 334. Dissatisfied with this order, the petitioners filed a revision petition before the Financial Commissioner, who rejected the same on 17th June, 1977, end upheld the order of the Commissioner, Aggrieved by these orders, the petitioners have filed the present petitions.

5. The facts in Civil Writ Petition No. 3028 of 1978, are also similar. The only difference is that the tenant in that case is Nidhan Singh.

6. Mr. Ram Rang, the learned counsel for the petitioners, has argued that the Financial Commissioner, Haryana, has dismissed the revision petition illegally, holding that the ejectment application should have been signed by all the petitioners because it was necessary that the solemn affirmation in the application in Form K-1 should be signed by all the applicants themselves. He also erroneously held that the general power of attorney is for the purpose of initiating and following un proceedings relating to ejectment. It dose not include making solemn affirmation a declaration regarding the property of the Principals. It was essential that such declarations or affirmations be signed by the land-owners themselves and they could not be signed by the attorneys on behalf of their principals even if they happened to be brothers of cosharers. For these conclusions he mainly relied on the two decisions of the Financial Commissioner in Atma Ram's case and Fauja Singh's case (supra). It is contended on behalf of the petitioners that these two decisions do not lay down correct law and are also distinguishable on facts. In Atma Ram's case (supra) the application had not been filed by the land-owner but by her son. In these circumstances, it was held that he was not a competent person to sign on behalf of the owner and could not declare himself to be a small land-owner. The Financial Commissioner did not consider the relevant statutory provisions of the Punjab Security of Land Tenures Act, Punjab Security of Land Tenures Rules and Punjab Tenancy Act nor were the same brought to his notice. On facts also, he held that the land-owner was a big land-owner and the applicant did not give the necessary particulars. In Fauja Singh's case (supra), the applicant had misincorporated the relevant provisions of law. In order to fully appreciate the contentions of the learned counsel, it will be useful to extract the relevant statutory provisions at this stage. Section 14-A of the Act reads as under:--

'Not withstanding anything to the contrary contained in any other law for the time being in force, and subject to the provisions of Section 9-A.

(i) a land-owner desiring to eject a tenant under this Act shall apply in writing to, the Assistant Collector, First Grade, having jurisdiction, who shall thereafter proceed as provided for in subsection (2) of Section 10 of this Act, and the provisions of sub-section-(1) of the said section shall also apply in relation to such application, provided that the tenant's rights to compensation, and acquisition of occupancy rights, if any, under the Punjab Tenancy Act, 1887 (XVI of 1887), shall not be affected;

(ii) 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 Chat 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;

(iii) (a) if a landlord refuses to accept rent from his tenant or demands rent in excess of what he is entitled to under this Act, or refuses to give receipt, the tenant may in writing inform the Assistant Collector, Second Grade, having jurisdiction of the fact;

(b) on receiving such application the Assistant Collector shall by a written notice require the landlord to accept the rent payable in accordance with this Act, or to give a receipt as the case may be or both within 60 days of the receipt of the notice.'

Rule 11 of the Punjab Security of Land Tenures Rules, 1953, reads as under:--

'The procedure of Revenue Officers in matters under the Punjab Security of Land Tenures Act, 1953, and these rules for which a procedure is not prescribed thereby, shall be regulated, as far as may be, by the procedure prescribed for Revenue Officers by the provisions of the Punjab Tenancy Act, 1887, and the rules there under'.

The relevant provisions of Section 80 of the Punjab Tenancy Act are given below:--

'(1) Appearances before a Revenue Officer as such, and applications to and acts to be done before him, under this Act may be made or done-

(a) by the parties themselves, or

(b) by their recognised agents or a legal practitioner;

Provided that the employment of a recognised agent or legal practitioner shall not excuse the personal attendance of a party to any proceeding in any case in which personal attendance is specially required by an order of the officer.

(2) For the purposes of subsection (1), recognised agents shall be persons as the State Government may by notification declare in this behalf.

(3)....... ................. .........................'

7. The grounds for ejectment of tenants under the Act are prescribed in Section 9 of the Act. Section 14-A lays down the procedure for the trail of ejectment applications. These sections do not in 'term provide that the ejectment application shall be signed by all the landowners. The terms and language of Form K-1, also do not require that the application should be signed by all the landowners. By Rule 11, it has been provided that the procedure of the revenue officers in matters under the Act shall be regulated in accordance with the procedure prescribed by the Punjab Tenancy Act. The rules do not prescribe any procedure, the signing, filing and trial of the ejectment applications. So, the procedure provided by Section 86 of the Punjab Tenancy Act is applicable to the ejectment applications, filed under the Act, Under sub-section. (1) of Section 86, recognized agents had been authorized to file applications and do acts which the parties themselves could do. In exercise of the powers conferred by Section 86(2) of the Punjab Tenancy Act, the Governor of Punjab issued a notification No. P. G. Not. No. 728 dated 1-11-1887, which reads as under:--

'In exercise of the powers conferred by Section 86(2) of the Punjab Tenancy Act the Hon'ble Lieutenant Governor is pleased to declare, and hereby declares that the following persons shall be recognised agents for the purposes of S. 86(1) of the same Act, viz. (a) Persons holding general power o!. attorney from parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application, or act is made or done, authorising them to make and do such appearances, application and acts on behalf of such parties. ............... ............ ............ ........'

A combined reading of Rule 11 of the Rules and sub-secs. (1) and (2) of Section 86 of the Punjab Tenancy Act and notification dated 1-11-1887 makes it abundantly clear that the persons holding general power of attorney were declared to be recognized agents for the purpose of Section 86(1). Such persons were competent to file applications and do acts before the revenue officers like the parties themselves. These recognized agents were authorized to file the ejectment petitions and to do all acts in relation to such applications which their principals could do Rule 11, ibid, makes the provisions of Section 85 and the rules framed thereunder applicable to the ejectment applications filed under the Act. Rule 2 of the Rules framed under Section 85 of the Punjab Tenancy Rules is in the following terms:--

'Verification of applications: (11) Every written application or statement filed by a party to a revenue Proceeding shall be drawn up and verified in the manner provided by the Civil Procedure Code for written statements in suits'.

This rule provides that the ejectment applications have to be verified in the manner provided by the Civil Procedure Code for written statements in suits O. 6 R. 15, Civil Procedure Code, is therefore made applicable to the pleadings in the ejectment applications under the Act. O. 6, R. 15, Civil P. C., reads as under:

'Verification of pleadings (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.

(2)........................

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed'.

So, the ejectment application can be filed by one of the land-owners. All them are not required to verify the same. The, conclusions of the Financial Commissioners that the Form K-1 which includes a solemn affirmation regarding the lands held by the applicants should be against by the applicants themselves are untenable. This is directly against the language and spirit of O. 6, R. 15, of the Civi1 P. C. Similarly, the Financial Commissioner has fallen in error in hold that the general power of attorney only for purpose of initiating and following up proceedings relating to ejectment and does not include making of solemn affirmation or declaration regard the property of the principals. This conclusion is factually wrong. Clause (3) of power of attorney clearly authorizes Baldev Singh to initiate proceedings, sign documents and file affidavits. That authority has been specifically given in s power of attorney. Even otherwise, this authority to make solemn affirmation impliedly includes the power to fi1e ejectment applications. This conclusion is also wholly unwarranted on facts and in law. The affirmation has been signed by Baldev Singh. He has taken the responsibility for the veracity of the averments in the ejectment application. That sufficient compliance with law.

8. In Atma Ram's case (supra), the application had not been signed by the landowner. It was dismissed on three grounds; namely, it was not signed by the land-owner; that it did not give the necessary particulars and that the applicant-land-owner was a big land-owner. So, this case is distinguishable on facts. Moreover, no reasons have been given for reaching the conclusions reproduced above by the Financial Commissioner. The statutory provisions and the notification issued under Section 86 of the Punjab Tenancy Act had not been brought to the notice of the Financial Commissioner. In Fauja Singh's case (supra), the Financial Commissioner has misread the provisions of Section 86 of the Punjab Tenancy Act and R. 11 of the Rules as also Section 14 of the Act. He has not considered the effect of the notification reproduced above. Both these decisions in Atma Ram's case and Fauja Singh's case (supra) do not lay down correct law. The applications filed by the petitioners through Baldev Singh are fully competent and fulfil all the requirements prescribed by law Baldev Singh as general attorney had the authority to file these applications on behalf-of his brothers and also on his own behalf. He had solemnly affirmed that the particulars given in the application are true. He has signed this affirmation. He is one of the land-owners. He is also the attorney. So, he could make this affirmation in either of the two capacities. As such, the application contains a valid affirmation which is the requirement of law. No law requires that the ejectment application should be signed by all the land owners. A recognized agent like a 'general attorney' properly authorized is fully competent to file and pursue an, ejectment application, So, in the present case, both the applications were validly made. They are fully competent. Accordingly, both these writ petitions are allowed and the orders passed by the Assistant Collector, Commissioner and the Financial Commissioner holding them incompetent are illegal and are set aside. The cases are now remanded to the Assistant Collector 1st Grade for decision on merits in accordance with law. The parties are directed through their counsel to appear before the Assistant Collector 1st Grade, Fatehabad, on 26th November, 1979. There shall be no order as to costs.

9. Writ Petitions allowed.


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