Yaga Ram v. Financial Commissioner and Principal Secretary & Ors.

Hon'ble Mr. Justice Alok Singh

1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Madan Pal, Advocate for the appellant. Mr. Sanjiv Gupta, Advocate for respondent No.5 to 10. ... Alok Singh, J.

1. In the present appeal, the appellant - petitioner is assailing order dated 21.3.2009 passed by learned Single Judge, whereby dismissing the writ petition filed by the petitioner on the ground that the appellant - petitioner has entered into an agreement to sell, hence he cannot be heard in the writ petition.

2. Brief facts of the present case are that respondent No.5 initiated ejectment proceedings against the petitioner in the Court of Assistant Collector, Ist Grade, Naraingarh, under the provisions of the Punjab LPA No. 596 of 2009 2 Security of Land Tenures Act, 1953, on the ground that the petitioner is cultivating the land on 1/3rd batai basis and that the petitioner has not paid rent of crops Kharif 95, Kharif, 96, Rabi 97, Kharif 97 and Rabi 98.

3. The Assistant Collector, Ist Grade, directed ejectment of the petitioner from the land in dispute by observing that although, the petitioner made payment, but he is not making payment regularly and he is a chronic defaulter and is liable to be ejected.

4. In appeal, the District Collector also dismissed the appeal vide order dated 18.10.2004 and the revision filed by the petitioner before the Divisional Commissioner was heard by the Commissioner and he vide order dated 30.8.2005 recommended the Financial Commissioner for allowing the revision having observed that the petitioner has deposited the rent. However, the Financial Commissioner did not agree with the Divisional Commissioner and passed the order impugned in the writ petition confirming the ejectment of the petitioner.

5. We have heard learned counsel for the parties and perused the record.

6. This Court in Amar Singh and others Vs. F.C., Haryana and others, 2006(3) RCR(Civil) 245, has held that ejectment order cannot be passed directly without assessing the arrears, interest, costs of application and then to qualify by way of interim order what the tenant had to pay or tender within 15 days from the date of such hearing. It is settled position of law that provisions of Section 14A(i) of the Punjab Security of Land tenures Act are peri-materia with the East Punjab Urban Rent Restriction Act. The Apex Court in Rakesh Wadhawan and others Vs. Jagdamba Industrial Corporation and others, Vol. CXXXI-(2002-2) PLR 371, in para 30 of the LPA No. 596 of 2009 3 judgement has held as under: - “To sum up, our conclusions are:

1. In Section 13(2) (i) proviso, the words 'assessed by the Controller' qualify not merely the words 'the cost of application' but the entire preceding part of the sentence i.e. 'the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application'.

2. The proviso to Section 13(2)(i) of East Punjab Urban Restriction Act, 1949 casts an obligation on the Controller to make an assessment of (i) arrears of rent (ii) the interest on such arrears, and (iii) the cost of application and then quantify by way of an interim or provisional order the amount which the tenant must pay or tender on the 'first date of hearing' after the passing of such order of 'assessment' by the Controller so as to satisfy the requirement of the proviso.

3. Of necessity, 'the date of first hearing of the application' would mean the date falling after the date of such order by Controller.

4. On the failure of the tenant to comply, nothing remains to be done and an order for eviction shall follow. If the tenant makes compliance, the inquiry shall continue for finally adjudicating upon the dispute as to the arrears of rent in the light of the contending pleas raised by the landlord and the tenant before the Controller.

5. If the final adjudication by the Controller be at variance with his interim or provisional order passed under the proviso, one LPA No. 596 of 2009 4 of the following two orders may be made depending on the facts situation of a given case. If the amount deposited by the tenant is found to be in excess, the Controller may direct a refund. If, on the other hand, the amount deposited by the tenant is found to be short or deficient, the Controller may pass a conditional order directing tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount, failing which alone he shall be liable to be evicted. Compliance shall save him from eviction.

6. While exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the Controller would be, whether the tenant has paid or tendered with substantial regularity the rent falling due month by month during the pendency of the proceedings. The view of the law so taken by us advances the object sought to be achieved by the legislation, serves best the interests of landlord and tenant both, removes uncertainty in litigation and obscurity in drafting of the provision and also accords with the principles of justice and equity. Even if, it is an innovation, it is in the field of procedural law, without affecting the substantive rights and obligations of the landlord and the tenant and such innovation is permissible on the basis of authority and supported by principles of justice, good sense and reason. We have not touched the substantive rights of landlord and tenant, LPA No. 596 of 2009 5 and are feeling satisfied with a do little in the field of procedure so as to effectuate the purpose of enactment.”

7. In view of the order passed by the Apex Court in Rakesh Wadhawan’s case (supra) and by a Division Bench of this Court in Amar Singh’s case (supra), we have no other alternative except to remand the matter to the Financial Commissioner to examine as to whether the Assistant Collector has made compliance of Section 14 of the Punjab Security of Land Tenures Act, 1953, as interpreted by this Court in Amar Singh’s case (supra) after referring to the judgement of the Apex Court in Rakesh Wadhawan’s case (supra) and as to whether after the full assessment as required by Section 14 of the Act, an opportunity was granted to the petitioner to deposit the same, and if, opportunity was granted as per Section 14 of the Act, as to whether payment was made or not.

8. The appeal is disposed of accordingly. Parties are directed to appear before the Financial Commissioner, Haryana, on 10.5.2010. ( Alok Singh ) Judge ( Adarsh Kumar Goel ) Judge

23.03.2010 sk.