Balwant Singh, v. Sodhi Lal Singh And Others

1. This is an appeal filed by Balwant Singh under Clause 10 of the Letters Patent against the order of Harbans Singh, J., dismissing his petition filed under Articles 226 and 227 of the Constitution.

2. The facts are not in dispute. Sodhi Lal Singh respondent applied to the Assistant Collector, Second Grade. Moga, under Section 14-A (ii) of the Punjab Security of Land Tenures Act, 1953, for the recovery of Rs. 900 from Balwant Singh appellant as the tenant of certain land for the harvests of kharif 1959 and rabi 1960 and a notice of demand in the prescribed form 'N' was issued to Balwant Singh and served on him on the 6th of November 1960. He disputed the correctness of the amount demanded and claimed that only a sum of Rs. 605 was due, the annual rent of the land, which was 88 kanals or 11 acres in extent, being Rs. 55 per acre. By his order, dated the 30th of December 1960 the Assistant Collector held that the rent due was in fact Rs. 605 and in his order he recorded the fact that the amount was tendered to the landlord by the tenant. He directed the landlord to accept the amount tendered on issuing a receipt or alternatively the tenant was directed to deposit the amount in Court. It appears that the landlord did not accept the tender made on the 30th of December 1960 and the amount was deposited in the treasury at Moga on the 2nd of January 1961 the two intervening days--the 31st of December 1960 and the 1st of January 1961 -- being holidays.

3. The landlord appealed to the Collector, who by his order dated the 14th of April 1961 upheld the order of the Assistant Collector. The landlord then went in revision to the Commissioner, who by his order dated the 4th of July 1962 took the view that the tenant was liable to ejectment because he had not paid the amount admittedly due from him within thirty days of the receipt by him of the notice in form 'N' (the 6th of November 1960) and he accordingly recommended to the Financial Commissioner that the orders of the Collector and the Assistant Collector should be set aside. His recommendation was accepted by the learned Financial Commissioner by his order dated the 11th of October 1962.

4. On the writ petition of Balwant Singh the learned Single Judge refused to interfere on the grounds that certain observations by a learned Financial Commissioner in the case reported as 1960-39 Lah LT 65, to the effect that where there is a dispute between a landlord and a tenant regarding the amount of rent due the tenant can pay the amount arrived at by the Assistant Collector within thirty days from the determination of the rent by him, were merely obiter and that in any case the proper remedy for the tenant was to approach the Financial Commissioner for the review of his order.

5. In my opinion there can be no doubt that a wrong view of the law has been taken by the learned Commissioner and the learned Financial Commissioner in this case. section 14-a (ii) of the Act reads:

"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 that the landlord refused 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 land-owner in possession of the land concerned."

The relevant portion of the demand notice in form 'N' reads--

You are now required, within a month of the receipt of this notice, to (1) deposit the rent or the value thereof (if rent payable in kind) in this Court; or (2) give proof of having paid the rent; or (3) give proof of not being liable to pay the whole or part of this demand, or (4) give proof of the landlord's refusal to receive the rent or give a receipt for it.

6. Admittedly the matter was only determined by the Assistant Collector on the 30th of December 1960, but it is nowhere suggested that the tenant had not entered his objection to the amount of the demand within thirty days of the receipt by him of the landlord's notice. The words in section 14-a (ii) "or give proof that he is not liable to pay the whole or part of the rent", and the similar words as appear in (3) in the demand notice, clearly mean that where the amount demanded by the landlord is in excess of the amount due, there is no obligation of the tenant to pay the amount which he admits to be due before the matter has been determined by the Assistant Collector, and in this case, after the matter was decided by the Assistant Collector in favour of the tenant and the amount to be due had been tendered in Court and not accepted by the landlord, the amount was deposited in the treasury on the next day on which it was open after the date of the determination of the amount due.

7. The cases cited on behalf of the respondent do not help him in any way. The first of these is the decision of Tek Chand, J., in Dhanna v. Sri Parkash, 1962-64 Pun LR 855 in which the facts were that the landlord had applied to the Assistant Collector who by his order dated the 9th of January 1961 had determined the amount of rent due as Rs. 350.02 np. and had ordered the tenant to pay the amount' within one month of the date of his order on pain of ejectment. The tenant did not make the deposit within time, and when his appeal was dismissed by the Collector on the 13th of June 1961 a period of ten days was allowed for him to deposit the amount. The learned Judge merely held that the Collector had no power to extend the time fixed by the Assistant Collector for depositing the rent. In more or less similar circumstances the same view was taken by Grover, J., in Atma Singh v. Financial Commissioner, Punjab (1965) 44 Lah LT 18. The last case relied upon was the decision of S.B. Kapoor, J., in Amar Nath v. Hans Raj, 1966 Pun LJ 1. In that case the amount of rent demanded by the landlord, Rs. 1,000 was upheld by the Assistant Collector, who nevertheless allowed the tenant one month's time to deposit the amount but he did not do so. The learned Judge expressed the opinion that in such circumstances the Assistant Collector had no jurisdiction to extend the time fixed in the notice. None of these cases bears any resemblance to the present case on matters of facts.

8. As regards the view of the learned Single Judge that the proper remedy of the appellant, if the view taken by the learned Commissioner and the learned Financial Commissioner was wrong, was by way of a review petition to the learned Financial Commissioner, I do not find myself in agreement. In fact T am of the opinion that the learned Financial Commissioner could not review his order on the ground that he had taken a wrong view of the law, and the proper remedy of the appellant was by way of a writ petition for certiorari to this Court, which can interfere in such matters where a patently wrong view has been taken, as in the present case. The result is that I would accept the appeal with costs and quash the orders of the Financial Commissioner and the Commissioner.

D.K. Mahajan, J.

9. I agree.