Smt. Bimla Devi v. Financial Commissioner, Haryana & Ors.

Judgment

1. To be referred to the Reporters or not?

2. Whether the judgment should be reported in the Digest? Present : Mr. C.B. Goel, Advocate and Mr. Sanjeev Gupta, Advocate for the petitioner. Mr. Sumeet Sheokand, Advocate for Mr. R.S. Tacoria, Advocate for respondent No.4. **** RITU BAHRI, J. This writ petition under Articles 226/227 of the Constitution of India is for quashing the order dated 21.9.1989 (Annexure P-3) passed by the Financial Commissioner, Haryana, whereby the order of Collector and A.C. Ist Grade ejecting the tenant from the land in dispute, has been quashed. The respondent was tenant on the suit land measuring 48 Kanal 12 Marlas for about 52 years. The landlord / petitioner filed a suit for recovery of rent from the crop Kharif 1974 to Rabi, 1977. This C.W.P. No. 1886 of 1990 -2- suit was decreed on 27.10.1980 for `2474.35ps. The appeal of the tenant before the Collector was dismissed on 31.8.1981. The tenant deposited the rent due on 20.4.1983. The Landowners moved Assistant Collector, Ist Grade, Narwana on 15.8.1983 under Section 7 of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as “the Act”) for ejectment of the petitioner on the ground that the petitioner failed to satisfy the decree for arrears of rent for more than 6 months. Vide order dated 5.10.1987, ejectment of the tenant was ordered. The appeal of the tenant to the Collector was dismissed on 12.1.1988. The tenant filed revision before the Financial Commissioner on 5.4.1988. This revision was allowed and the order of ejectment passed by the Collector and A.C. Ist Grade, Narwana were quashed vide order dated 21.9.1989 (Annexure P-3). The Revisional Authority after going through Section 7(i) (b) of the Act held that the tenant could only be ejected, if he fails to pay arrears of rent within 6 months from the order directing his ejectment. In the present case, the order of ejectment was passed on

5.10.1987 by A.C. Ist Grade, the rent had been paid much before this date. It was held that the tenant was not liable for ejectment as he had deposited the arrears of rent as per Section 7 of the Act within the stipulated period of 6 months. It was further held that appeal of the tenant against his ejectment order was dismissed on 12.1.1988. His mandatory period of 6 month, as per Section 7 of the Act will commence from 12.1.1988.

Mr. C.B. Goel, learned counsel appearing on behalf of the petitioner has has referred to Section 7(i)(b) of the Act, which reads C.W.P. No. 1886 of 1990 -3- as under :- “Termination of tenancy. - (1) No tenancy other than a tenancy of the landowner who is member of the Armed Forced of the Union or a Non-Resident Indian shall be terminated except in accordance with the provisions of this Act or except on any of the following grounds, namely :- (a) [-] (b) that the tenant has failed to pay rent within a period of six months after it falls due : Provided that no tenant shall be ejected under this clause unless he has been afforded an opportunity to pay the arrears of rent within a further period of six months from the date of the decree or order directing his ejectment and he has failed to pay such arrears during that period; (c) that the tenant, not being a widow, a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reasons of physical or mental infirmity has after commencement of the President's Act, C.W.P. No. 1886 of 1990 -4- sublet without the consent in writing of the landowner, the land comprising his tenancy or any part thereof; (d) that the tenant has, without sufficient cause, failed to cultivate personally such land, in the manner and to the extent customary in the locality in which such land is situated; (e) that the tenant has used such land or any part thereof in a manner which is likely to render the land unfit for the purpose for which it was leased to him; (f) that the tenant, on demand, in writing by the landowner has refused to execute a kabuliyat agreeing to pay rent in respect of his tenancy in accordance with the provisions of sections 9 and 10.” The initial application for recovery of rent had been decided on 27.10.1980 for `2474.35ps. This decree had been dismissed by the Collector on 31.3.1981. From 27.10.1980 rent became due and the tenant deposited this rent on 20.4.1983 after the mandatory period of six months was over. An application under Section 7 of the Act for ejectment after 6 month's period had elapsed. In the present case, after 31.8.1980 the landowner could file a petition under Section 7 of the Act for ejectment after the period of 6 C.W.P. No. 1886 of 1990 -5- month's had elapsed. Therefore, even if the rent was deposited in April, 1983 the tenant could not take benefit of payment of rent and can be saved from ejectment. Once the tenant has defaulted in payment of rent within the prescribed time he is liable to be ejected. In support of this contention, the learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Phul Chand Vs. Financial Commissioner and others 1968 P.L.J. 207, and the judgments of the Hon'ble Supreme Court in the cases Mrs. Raj Kanta Vs. the Financial Commissioner, Punjab and another 1980 P.L.J. 346 and Dina vs. Financial Commissioner, Punjab and others 1996 PLJ 121. Mr. Sumeet Sheokand, learned counsel appearing on behalf of respondent No.4 has vehemently contended that as per proviso to Section 7(i)(b) of the Act, tenant is liable to be ejected if he does not pay the arrears of rent within a period of 6 months from the date of decree or order directing his ejectment. And the tenant has failed to pay such arrears during that period. He has emphasised that the language of the Rule contemplates that any decree or order of ejectment has to be passed to enable the tenant to deposit arrears of rent within 6 months. In the present case, the original decree dated 27.10.1980 for `2474.35ps was a decree for payment of rent due. It did not direct ejectment of the tenant. Therefore, even on rejection of appeal by the tenant on 31.3.1981 there was no order of ejectment against the tenant. The tenant has deposited the rent on 20.4.1983 and the order C.W.P. No. 1886 of 1990 -6- of ejectment passed by the Assistant Collect Ist Grade is dated

5.10.1987. The deposit of rent is much prior to this date. Mr. Sumeet Sheokand learned counsel for respondent No.4 argued that the mandatory period of 6 months for deposit of arrears of rent will became due from 5.10.1987 i.e. the date of order ejecting tenant from the land. In support of his argument he has placed reliance on the judgment of the Financial Commissioner, Haryana in the case of Manu Ram and another Vs. Joginer Singh and others 1988 PLJ

516. I have heard the learned counsel for the parties and have gone through the file. This Court in the case of Phul Chand Vs. Financial Commissioner and others (supra) had an occasion to examine a case where the interpretation of Section 7(1)(b) of the Pepsu Tenancy and Agricultural Lands Act, 1955 was an issue. This was the case where there was a compromise between tenant and the landlord, in relation to payment of rent on 10.8.1962. The tenant had paid `300/- (Rupees three hundred only) as rent on 10.8.1962. The balance amount was to be paid in due course. On non-payment of rent the landlord initiated execution proceedings and the ejectment of tenant was ordered from the land in dispute. The tenant filed a revision to the Financial Commissioner, which was allowed, on the ground, that the condition of ejectment was not incorporated in the compromise order dated 10.8.1962. Failure on the part of the tenant to pay rent will not automatically lead to ejectment of the tenant. The observations of this Court in the said case reads as under :- C.W.P. No. 1886 of 1990 -7- “The suit was instituted on the 14th July, 1962, inter alia, for rent of Rabi 1962, ending June 1962. On the date of the institution of the suit, it could not be said that the tenant had failed to pay rent within a period of six months after it fell due, within the contemplation of the above-quoted clause (b) of section 7(1) of the Act. The suit for arrears of rent was decreed in view of the compromise on the 10th August, 1962. That is to say, on the date of the decree also, the rent of Rabi 1962, was not in the arrears for a period of six months. On that basis, therefore, no decree for ejectment of the tenant could be passed against the tenant under section 7(1)(b) of the Act.” The ratio of the judgment is that six month's mandatory time is to be given to the tenant after an order of ejectment has been passed. In the present case, a decree for rent was passed on

27.10.1980. In this decree, there was no order of ejectment. The tenant deposited the rent as per the decree on 20.4.1983. On this date, there was no order of ejectment against the tenant. Vide order dated 5.10.1987, ejectment order of the tenant was ordered by the Assistant Commissioner, Ist Grade, Narwana. the six months mandatory period begins from 5.10.1987 when the order of ejectment of the tenant was ordered. The tenant had deposited the rent on

20.4.1983. Applying the ratio of Phul Chand Vs. Financial Commissioner and others case (supra) the ejectment of the tenant as per Section 7(1)(b) of the Act could not be made for non-payment C.W.P. No. 1886 of 1990 -8- of rent. This proposition of law has been followed in the case of Phul Chand Vs. Financial Commissioner and others (supra), Pritam Singh and Others Vs. Om Parkash 1987 P.L.J. 100 and Mohd. Shafi Vs. Jangir Singh 1970 P.L.J. 255. In view of the above, the writ petition is dismissed with no order as to costs.

24.12.2010 'sp' (RITU BAHRI) JUDGE