CHANU RAM Vs. FINANCIAL COMMISSIONER, HARYANA

JUDGEMENT

(1.) Petitioners seek a writ in the nature of certiorari so as to quash order dated 11.6.1979 passed by the Commissioner, Hissar vide which he recommended to the Financial Commissioner that order passed by the Collector dated 3.1.1979 and the one passed by the Assistant Collector 2nd Grade Hissar dated 21.9.1978 should be set aside and Annexure P5 dated 5.12.1979 passed by Financial Commissioner Haryana, vide which the said orders were set aside.

(2.) The facts of the case reveal that the petitioners owned land measuring 79 Kanals 6 marlas situate in village Bosti, Tehsil Tohana District Hissar. Respondents No. 3 to 6 who are real brothers are in joint cultivating possession under the petitioners as tenants. The petitioners on 3.5.1976, filed an application under Section 14-A(ii) of the Punjab Security of Land Tenures Act, 1953(hereinafter to be referred as the Act) for the recovery of arrears of rent amounting to Rs. 928.50 for the crop Kharif 1975 against respondent tenants No. 3 to 6. Under the Rules, such an application is to be submitted in form 'M' and the Assistant Collector 2nd Grade is then to issue a notice in form "N" requiring the tenant, within a month of receipt of the notice either to deposit the rent or the 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 it or of the fact of the landowner's refusal to receive the same or to give a receipt of within the period specified in the notice. On receipt of the application, the Assistant Collector issued notices to the said respondents to appear in his court on 27.5.1976. The service of only one respondent namely Prem could be effected and it is proved that he was supplied a copy of forms "M and "N" and the same were signed by him. The others could not be found at the place and, thus, only one of the tenants was served for 27.5.1976. Respondent Prem, however, did not appear despite service and was ordered to be proceeded against ex parte . The matter was adjourned to 31.5.1976 on which date Surjan, Tilku and Prem respondents appeared. On appearance of Prem, the ex parte proceedings ordered against him on 27.5.1976 were dropped. On 31.5.1976, the aforesaid three respondents made a statement that their fourth brother Sardha was unable to come on account of the fact that he was sick and since they had a joint khata they would make statement even on his behalf. In the statement so made, they agreed that they were liable to pay the amount in question but since they have not brought the money, they prayed for time till 14.6.1976. On the adjourned date of hearing only one of the respondents appeared and made a statement that they have applied for the transfer of the case to the Court of collector and on that count prayed for an adjournment. Transfer application was, however, not pursued and it was dismissed in default on 21.9.1976. When the case was received by the Assistant Collector 2nd Grade Tohana, the tenants did not appear and fresh notices were issued to them. These notices, however, remained unserved necessitating service through registered post. The notices even then remained unserved. Thereafter the Assistant Collector ordered that the service be effected by proclamation and affixation. The respondents still did not choose to appear, thus, leaving no other course for the Assistant Collector but to proceed with the recording of evidence on 20.12.1976. On that day itself, after recording evidence of the petitioners it was ordered that the respondents must pay the due amount within 30 days from 20.12.1976 i.e. the day when the order was passed, on account of rent failing which they will be liable to be ejected. Against this order, an appeal was preferred before the Collector. The Collector accepted the appeal on consent of both the parties. The relevant extract of the other aforesaid reads thus :-

(3.) On remand, when the matter came up before Assistant Collector 2nd Grade, Hissar, several opportunities were given to the tenants to produce proof in support of the fact that they had paid the Batai but as mentioned earlier, no evidence whatsoever was produced necessitating an order of ejectment. The aforesaid order was passed on 21.9.1978. The respondents as earlier were once again activated only on passing of ejectment order when they carried an appeal against the orders dated 21.9.1978 before the Collector. Once again, the grouse of tenant-respondents was that they were not given proper opportunity by the Asstt Collector. This appeal was, however, dismissed on 3.1.1979. Not satisfied, the tenants filed a revision before the Commissioner wherein, for the first time, an objection was raised that form "N" had not been properly served upon the respondents. On this, the Commissioner forwarded the case to the Financial Commissioner with the recommendations that all the respondents should be ordered to be served with copies of forms "M" and "N" and they should be given 30 days time to pay the Batai. This order was passed on 11.6.1979 and as mentioned above the recommendation made by the Commissioner was accepted by the Financial Commissioner, on 5.12.1979. As mentioned in the earlier part of the judgment, it is these orders which have been impugned in the present petition. A reading of the order passed by the Commissioner shows that recommendation was made on the ground that forms "M" and "N" were not served on all the tenants. The learned Commissioner also dealt with other matters but in ultimate analysis recommendation was made to set aside the orders of Collector and Assistant Collector 2nd Grade Hissar on the ground that copies of forms "M" and "N" should have been served on all the tenants. The learned Financial Commissioner, however, did not feel it necessary to go into the aforesaid issue as in his view it was not necessary. It is required to be mentioned here that the petitioner relied upon Hari Singh & another v. Gau Raksha Mandal Gaushalla, Sangrur,1971 PunLJ 884 to contend that service of notice to quit upon one joint tenant is prima-facie evidence that it has reached the other joint tenants and after noticing the aforesaid judgment which was based on the judgment given by the Privy Council and Supreme Court, the Financial Commissioner, the order passed by the Assistant Collector dated 21.9.1978 did not specify that the tenants are given on month's notice for the payment of arrears of rent. In the earlier part, however, it was held that it is correct that once the service of a notice, Form "N" has been effected on a tenant he is expected to deposit the rent within one month and if instead he decides to contest the landowners' application in form 'M' which forms are enclosure to form 'N' then he does so at his own risk and if subsequently it is held that exactly the same amount was due from him as was originally demanded by the landowner on form 'M' and the tenant, had not, while contesting the said application, taken the precaution of depositing the demanded amount within one months of the service on him of form 'N' then he is liable to be ejected without further notice.