Subhash Chand vs State Of Haryana & Ors

Mauja Baselwa Tehsil in district Faridabad and the

respondent No.4 was a tenant in respect of this land and the

respondent No.4 had not paid rent for the land for five years

from Kharif 1977 to Rabbi 1982. She prayed that the

respondent No.4 be evicted from the land and a decree for

recovery of rent for 3 years from Kharif 1979 to Rabbi 1982

totalling to Rs.63/- be passed. The Assistant Collector issued 3

summons to the respondent No.4 and the respondent No.4

filed a written statement in which he pleaded that he had filed

a suit for declaration of occupancy rights in respect of the suit

land which had been decreed in his favour and therefore he

was not liable to pay rent. After considering the evidence led

by the parties and after hearing the arguments of learned

counsel for the parties, the Assistant Collector in his order

dated 10.03.1995 found that the respondent No.4 had been

declared occupancy tenant by the Assistant Collector by order

dated 07.04.1981 but on appeal being filed by the mother of

the appellant, the Collector had remanded the case to the

Assistant Collector by order dated 10.11.1981 and thereafter

the Assistant Collector again declared the respondent No.4 as

the occupancy tenant by order dated 12.11.1982, but on

appeal the Collector set aside the order dated 12.11.1982 and

held that the respondent No.4 had ceased to be an occupancy

tenant by order dated 15.06.1983. The Assistant Collector

further found that the respondent No.4 carried an appeal to

the Commissioner who dismissed the appeal by order dated

31.01.1986 and the respondent No.4 thereafter filed a revision 4

which was also dismissed by the Financial Commissioner by

order dated 22.07.1986. In his order dated 10.03.1995,

however, the Assistant Collector held that as no notice in Form

`N' had been served on the respondent No.4 and the rent had

been paid by the respondent No.4 on 05.06.1986 the

application of the mother of the appellant was not

maintainable.

3. The mother of the appellant then filed an appeal before

the Collector, Faridabad, who dismissed the appeal. She filed

a revision before the Commissioner, Gurgaon Division and the

Commissioner in his order dated 18.02.2000 held that if the

suit had been filed under the Punjab Security of Land Tenures

Act, 1953 (for short `the 1953 Act') then notice in Form `N' was

required to be given but as the suit had actually been filed

under Section 77(3) of the Punjab Tenancy Act, no such notice

in Form `N' was required to be given. The Commissioner

further held that it was clear from the records of the Assistant

Collector, First Grade, Ballabgarh, Faridabad, that the

respondent No.4 had admitted in his written statement that he

had not paid the rent and had deposited the rent after the suit 5

was filed by the mother of the appellant for recovery of rent

and for eviction and accordingly set aside the orders of the

Assistant Collector and the Collector by his order dated

18.02.2000. The respondent No.4 filed a revision before the

Financial Commissioner, Haryana, and the Financial

Commissioner by his order dated 14.08.2001 allowed the

revision and restored the order of the Collector. The appellant

challenged the order of the Financial Commissioner before the

High Court in Civil Writ Petition No.3733 of 2002 and the High

Court dismissed the writ petition by the impugned order.

4. Mr. Manoj Swarup, learned counsel for the appellant,

submitted that Section 9(1)(ii) of the 1953 Act provides that a

tenant is liable to be ejected if he "fails to pay rent regularly

without sufficient cause." He submitted that in Mrs. Raj

Kanta v. The Financial Commissioner, Punjab and Others

[(1980) 3 SCC 589] this Court has held that the words "fails to

pay rent regularly without sufficient cause" in Section 9(1)(ii)

mean that the tenant should pay rent punctually and

consistently without any break or breach and even a single

default in the payment of rent committed by the tenant would 6

make him liable for eviction under Section 9 (1)(ii) of the 1953

Act. He argued that in the present case there was a clear

default on the part of the respondent No.4 to pay rent for the

period from Kharif 1979 to Rabbi 1986 and therefore he was

liable to be evicted under Section 9 (1) (ii) of the 1953 Act. He

contended that under Section 14-A (i) a landowner desiring to

eject a tenant under the Act can apply to the Assistant

Collector, First Grade and the Assistant Collector will

thereafter follow the summary procedure in Section 10(2) of

the 1953 Act and eject a tenant. He vehemently argued that a

plain reading of Section 14-A(i) would show that notice in

Form `N' was not required to be served where the application

was for ejectment on any of the grounds mentioned in Section

9(1) of the 1953 Act. He submitted that since the application

of the mother of the appellant before the Assistant Collector,

First Grade, was for ejectment for non-payment of rent, notice

in Form `N' under Section 14-A(ii) of the 1953 Act was not

required to be sent to the tenant and therefore the Assistant

Collector, the Collector, the Financial Commissioner and the

High Court have taken an erroneous view that the application 7

was liable to be rejected because notice in Form `N' had not

been served on the tenant. He submitted that this a fit case in

which this Court should set aside the impugned order of the

High Court and direct eviction of the respondent No.4 on the

ground that he has failed to pay rent for a period of five years.

5. In reply, Mr. R.F. Nariman, learned senior counsel

appearing for the legal heirs of respondent No.4, submitted

that a plain reading of the application filed by the mother of

the appellant before the Assistant Collector would show that it

was an application for recovery of arrears of rent for the years

1978-1980, 1980-1981, 1981-1982 amounting to Rs.63/- and

Section 14-A(ii) of the 1953 Act read with Rule 22 of the 1956

Rules made it clear that a notice in Form `N' had to be served

on the tenant to deposit the rent and it is only on failure on

the part of the tenant to deposit the rent that the tenant is

liable to be evicted by the Assistant Collector. Mr. Nariman

argued that the Assistant Collector, the Collector and the

Financial Commissioner were, therefore, right in coming to the

conclusion that as no notice in Form `N' for payment of arrears

of rent had been served on the respondent No.4, the 8

application for eviction of the respondent No.4 for non-

payment of rent was not maintainable. In support of this

contention, he cited the decision of this Court in Kapur Chand

Jain v. B. S. Grewal & Ors. [(1965) 2 SCR 36]. He further

submitted that in any case a tenant will have to be given a

reasonable opportunity to clear arrears of rent, if any, before

he is evicted for non-payment of rent. He explained that in

this case the respondent No.4 had taken a plea in his written

statement filed before the Assistant Collector that he had not

been paying rent because his occupancy rights in respect of

the land had been declared by the Assistant Collector. He

submitted that as soon as the respondent No.4 found that his

claim for occupancy rights in respect of the land was not

acceptable to the authorities, he deposited the rent before the

Assistant Collector, Second Grade, Faridabad. He submitted

that the respondent No.4 therefore had sufficient cause for not

paying the rent earlier and he was not liable to be evicted

under Section 9(1)(ii) of the 1953 Act. He submitted that the

mother of the appellant had actually filed a suit under Section

77 of the Punjab Tenancy Act, 1887 and the Assistant 9

Collector had also recorded oral evidence of witnesses and had

not followed the summary procedure laid down under Section

10(2) of the 1953 Act. He submitted that under Section

39(1)(c) of the Punjab Tenancy Act, 1887 a tenant could be

evicted for failure to pay rent only when a decree for an arrear

of rent in respect of his tenancy had been passed against him

and such decree had remained unsatisfied. He submitted that

in the present case there is no decree for arrear of rent in

respect of the tenancy of the respondent No.4 and, therefore,

he was not liable to be evicted under Section 39 of the Punjab

Tenancy Act, 1887.

6. Mr. Swarup, learned counsel for the appellant, however,

submitted that the Assistant Collector by recording oral

evidence adduced on behalf of the parties had not caused any

prejudice to the respondent No.4. He cited the decision of the

Punjab and Haryana High Court in Manohar & Ors. v.

Financial Commissioner, Haryana & Ors. [2000 (2) PLJ 460] in

which a Division Bench of the High Court has held that by

following a lengthy procedure of framing issues, recording

evidence and considering the factual and legal aspects, a 1

tenant does not suffer any prejudice whatsoever, rather he has

a better opportunity to prove his case.

7. Sections 9(1)(ii), 10(2) and 14-A of the 1953 Act, on which

the counsel for the parties have relied upon, are quoted

hereinbelow:

"9(1)(ii) - Liability of tenant to be ejected.--(1) Notwithstanding anything contained in any other law for the time being in force, no land-owner other than a land-owner, who is a member of the Armed Forces of the Union or a Non-Resident Indian shall be competent to eject a tenant except when such tenant--

(i) ...................................................................

(ii) fails to pay rent regularly without sufficient cause.

...................................................................

10(2) - Restoration of tenant ejected after the 15th of August, 1947.-

(1) ...................................................................

(2) On receipt of an application the Assistant Collector shall, after giving to the parties notice in writing and a reasonable opportunity to be heard, determine the dispute summarily and shall keep a memorandum of evidence and a gist of his final order with brief reasons therefor.

1 14-A. Procedure for ejectment and recovery of arrears of rents etc. - 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,--

(i) a landowner 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 sub-section (2) of Section 10 of this Act, and the provisions of sub-section (3) 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 landowner 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 this Act, the Assistant Collector finds that the tenant has not paid or deposited the rent he shall eject the tenant summarily and put the landowner in possession of the land concerned;

(iii) (a) If a landowner refuses to accept rent from his tenant or demand rent in excess of what he is entitled to under this Act, or refuses to give a receipt, the tenant may in writing inform the 1

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 maybe, or both, within 60 days of the receipt of the notice."

8. The first question which arises for decision in this case

whether the Commissioner who decided the revision in favour

of the appellant was right in holding that the suit for ejectment

of the respondent No.4 was under Section 77(3) of the Punjab

Tenancy Act. Clause (i) of Section 14-A makes it clear that

notwithstanding anything to the contrary contained in any

other law for the time being in force, where the land-owner

desires to eject a tenant under the Act, he has to apply in

writing to the Assistant Collector, First Grade, having

jurisdiction, who shall thereafter proceed as provided for in

Section 10(2) of the 1953 Act. Clause (ii) of Section 14-A

states that notwithstanding anything to the contrary

contained in any other law for the time being in force, where a

land-owner desires to recover arrears of rent from a tenant he

has to apply in writing to the Assistant Collector, Second 1

Grade, who shall thereupon send a notice in the form

prescribed, to the tenant either to deposit the rent or value

thereof 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

and after summary determination in accordance with Section

10(2) of the Act if 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. Hence, for ejectment of a tenant under the 1953

Act or for recovery of arrears of rent from a tenant, the

procedure laid down in Section 14-A read with Section 10(2) of

the Act has to be followed. The application of the mother of

the appellant, in the present case, was for ejectment of the

tenant and for recovery of arrears of rent and was really an

application under Section 14-A of the 1953 Act and not a suit

under Section 77(3) of the Punjab Tenancy Act, 1887. A

reading of Section 10(2) of the 1953 Act shows that under the

summary procedure contemplated therein the Assistant

Collector is required to give notice to the parties in writing and 1

reasonable opportunity to be heard and he is required to

determine the dispute summarily and to keep a memorandum

of evidence and a gist of a final order with brief reasons

therefor. On an examination of the records of this case, we

also find that the Assistant Collector has followed the

procedure laid down in Section 10(2) of the 1953 Act. Hence,

the Commissioner was not right in holding that the mother of

the appellant had filed a suit under Section 77(3) of the

Punjab Tenancy Act.

9. The real question which we are called upon to decide in

this case is whether the respondent No.4 was liable to be

ejected under Section 9(1)(ii) of the 1953 Act. The language of

clause (ii) of sub-section (1) of Section 9 would show that the

tenant is liable to be ejected if he fails to pay rent regularly

`without sufficient cause'. In Mrs. Raj Kanta v. The Financial

Commissioner, Punjab and Others (supra), this Court, while

interpreting Section 9(1)(ii) of the 1953 Act, observed:

"We might add at the risk of repetition that the use of the words `without sufficient cause' clearly indicates that the intention of the legislature was that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he 1

wants to get rid of the consequences of his default, he must prove sufficient cause. ..............."

Thus, where the tenant is able to prove that he had sufficient

cause for not paying the rent for any period, he can get rid of

the consequence of ejectment provided in Section 9(1)(ii) of the

1953 Act.

10. We find that in this case in reply to the application of the

mother of the appellant for recovery of arrears of rent and

for ejectment filed before the Assistant Collector, First

Grade, the respondent No.4 has taken a plea in the written

statement that his suit for declaration of occupancy rights

in respect of the land had been decreed in his favour by the

Assistant Collector and he was not liable to pay rent for the

land as a tenant. The Assistant Collector had, in fact,

decreed the suit of the respondent No.4 for occupancy

rights on 07.04.1981. On appeal by the mother of the

appellant, the Collector had remanded the case to the

Assistant Collector but the Assistant Collector again

decreed the suit on 12.11.1982. The mother of the

appellant filed an appeal before the Collector who allowed 1

the appeal on 14.06.1983. Thereafter, the respondent No.4

filed an appeal before the Commissioner, Ambala Division,

which was dismissed on 31.01.1986. The respondent No.4

then moved the Financial Commissioner in revision and the

Financial Commissioner dismissed the revision on

22.07.1986. In the meanwhile, the respondent No.4

deposited the rent in the Treasury vide Challan dated

05.06.1986. These findings of facts in the order of the

Assistant Collector, which have not been disturbed by the

Collector and the Financial Commissioner, clearly establish

that the respondent No.4 did not pay rent for the land as

he was pursuing his claim of occupancy rights in respect of

the land and if his claim was finally allowed he would not

be liable for rent. The respondent No.4 had, therefore,

sufficient cause for not paying the rent for the land and

was not liable to be evicted under Section 9(1)(ii) of the

1953 Act. As we have held that the respondent No.4 was

not liable to be ejected, it is not necessary for us to decide

whether notice in Form `N' was required to be given to the

respondent No.4 under Section 14-A(ii) of the 1953 Act 1

before ejectment of the respondent No.4.

11.We therefore do not find any merit in this appeal and we

accordingly dismiss the same. No costs.

.............................J. (R. V. Raveendran)

.............................J. (A. K. Patnaik) New Delhi, December 16, 2010.