AI Structured Summary
Not yet generated for this judgment
Judgment
Harbans Lal, J.—The writ petition under Articles 226 and 227 of the Constitution for quashing the order of ejectment passed against the appellant by the Revenue authorities was dismissed by the learned Single Judge vide his judgment dated February 6, 1975. The present letters patent appeal is directed against the same.
The land in dispute owned by respondents Nos. 5 to 9 was under lease with Shrimati Umrao Begum and others as permanent lessees on the basis of a patanama. The tenants were liable to pay rent under the lease to the landlord at the rate of Rs. 109/- par annum and in case of default for three years, were liable to be ejected Consequent to the partition of the country in 1947, the Muslim tenants migrated to Pakistan and the property, thereafter was vested in the Central Government as evacuee property. The proprietary rights therein were allotted to the appellant by the Managing Officer on the basis of the auction and the provisional transfer was effected in his favour by order dated June 2, 1958. (Annexure A). However, in the revenue records including the jamabandi and the girdawaris, the appellant was entered as a lessee.
The landlords, respondents Nos. 5 to 9, filed a suit for ejectment against the appellant in the court of the Assistant Collector u/s 77 of the Punjab Tenancy Act, (hereinafter called the Act), on the ground that the lease money had not been paid, the value of the land had been reduced as a result of misuser and the same had been sublet. The suit was decreed and the order of ejectment was passed on June 2, 1970 (Annexure B). Appeal before the Collector was dismissed on April 12, 1971 (Annexure D), with a recommendation to the Financial Commissioner for acceptance of the revision petition. However, the learned Financial Commissioner upheld the orders of the Assistant Collector and the Collector by his order dated May 1, 1973 (Annexure E).
It was held by all the revenue authorities that the status of the appellant after auction by the Rehabilitation authorities was that of a tenant and he was liable to pay rent to respondents Nos. 5 to 9 who were his landlords The contention of the appellant before the Commissioner was that he had submitted an application on March 6, 1971 before the Collector with a prayer that he may be allowed to pay the arrears with interest due u/s 48 of the Act and that he should not be ejected. According to the appellant, this application had not been decided by the Collector and as such, the order of the Collector in the suit could not be sustained According to the Commissioner, this application had, in fact been decided on merits and dismissed by the Collector by his order dated March 6, 1971. However, it was held that the appellant was entitled to the relief u/s 48 of the Act. Consequently, he recommended to the Financial Commissioner that the Assistant Collector be directed to determine the amount of compensation u/s 48 after hearing both the parties and also the arrears of rent due on the payment of which the appellant should be allowed to continue in possession.
This order of the Commissioner was not agreed to by the learned Financial Commissioner in his order dated May 1, 1973 as, in his opinion, section 48 was applicable to occupancy tenants only. A perusal of the order of the Commissioner (Annexure D) makes it clear that the appellant had given up all his contentions except that his application dated March 6, 1971, filed before the Collector for permission to make payment of therein u/s 48 of the Act should be allowed. However, before the learned Single Judge, the learned counsel for the appellant claimed relief u/s 114 Transfer of Property Act, though section 45 of the it was also pressed into service. The writ petition was, however, dismissed, on the ground that after the order of the learned Financial Commissioner, the land, in dispute had been acquired by the Government and as such; the question of ejectment of the appellant did not arise.
It has been contended by the learned counsel for the appellant, that if the order of ejectment was set aside, the appellant will be entitled to claim compensation as a tenant which will be determined regarding the acquisition of land, in dispute, and the factum of acquisition of land by the Government has no relevance so far as the relationship between the respondent and the appellant as the landlords and the tenant before the acquisition of land was concerned. This contention is not without substance. The order of ejectment passed against the appellant if set aside will be of academic interest so far as the actual dispossession or ejectment of the appellant as a tenant is construed because the land, in dispute, is no longer in possession of respondents Nos. 5 to 9, on account of its acquisition by the State. However, the determination of the status of the appellant as a tenant is quite relevant with regard to claim of possession in acquisition proceedings. In view of the same, the learned counsel for the appellant, was allowed to make his submission on merits regarding the correctness and legality of the impugned orders. It was frankly conceded by the learned counsel that the appellant after allotment of the land, in question by the Rehabilitation Department had not made any payment of rent to the landlords-respondents Nos. 5 to 9. However, as he was under the bona tide impression that he had purchased the proprietory rights in the land from the Rehabilitation authorities, he was not liable to pay any rent to the respondents. In view of the same, even if the appellant is held to be a tenant under these respondents, he was entitled to continue his status as a tenant u/s 114 of the Transfer of Property Act on payment of the arrears of the rent together with interest there on and the costs of the suit It was also, contended relying on a Division Bench Judgment of this court in Guru Nanak ex servicemen Cooperative Tenant Farming Society v. The State of Haryana (1971) 73 P.L.R. 860 that though this provision did not apply to Punjab and Haryana, yet the equitable principles underlying the said provision were applicable with full force. I have carefully perused this judgment. Therein, the Collector determined the lease u/s 6 of the East Punjab Utilization of Lands Act, merely on account of non-payment of rent though according to the petitioners, payment of rent had not been insisted upon in the previous years and the petitioners were always ready and willing to pay the entire amount of arrears claimed by the Collector forthwith. It was in view of the peculiar circumstances of the said case that the equitable principles of section 114. Transfer of Property Act, were made applicable. However, in the present case, no such plea was taken by the appellant in his written statement before the Assistant Collector and the arrears of rent were not offered. On the other hand, his case was that he was not a tenant of the respondents and had purchased the property from the Rehabilitation Department as an owner. Even after the filing of the appeal before the Collector, no attempt was made by him to get any relief on the basis of the equitable principles under this provision, but reliance was placed on section 48 of the Act which was clearly not attracted to the facts and circumstances of this case as held by the Financial Commissioner. It was only in the writ petition for the first time that the equitable principles underlying section 114, Transfer of Property Act, were pleaded. It is well settled principle of law that pleas not taken up before the authorities below cannot be allowed to be taken up for the first time in the writ petition. A close perusal of section 114, Transfer of Property Act, makes it evident that discretion has been vested in the Court concerned to order payment of arrears of rent with interest and costs etc. in lieu of making a decree for ejectment. Thus the Assistant Collector while trying the suit of the respondents for ejectment of the appellant on the ground of non-payment of rent had no occasion to apply his mind to the question. In fact BO relief was claimed on this ground at any stage even up to the financial Commissioner. In these circumstances, the appellant cannot be allowed to make out a new case at this late stage.
Besides, after the enforcement of the Punjab Security of Land Tenures Act 1953, the tenants on agricultural lands can be ejected only on the grounds mentioned u/s 9 of this Act. Under this provision, in case the landlord is a small landowner the tenant can be ejected in default of payment of rent continuously for three years, and no discretion is vested in the authority concerned to order payment of arrears of rent after the proceeding for ejectment has been initiated. This is special provision concerning the matter of ejectment of tenants It was net permissible for any authority to travel beyond the ambit of this specific provision and the appellant is not entitled to any relief under the general principles of equity as incorporated in section 114, Transfer of Property Act.
In view of the above discussion, there is no merit in the appeal which is dismissed with costs.
S.S. Sandhawalia, C.J.
I agree.