Civil Writ Petition No. 12563 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- Civil Writ Petition No. 12563 of 2006 Date of decision: 12.11.2008 Mansa Ram ........Petitioner Versus State of Haryana and others .......Respondent(s) Coram: Hon'ble Mr. Justice J.S.Khehar Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Harbhagwan Singh Sr. Advocate with Mr. Amit K Singh, Advocate for the petitioner Mr. Surinder Kumar Bishnoi,DAG, Haryana for respondents No. 1 to 5 Mr. B S Bedi, Advocate for respondents No. 6 to 9 -.- J.S.Khehar , J. (Oral) Mohd. Farooq, Mohd. Azam, Waji-ulla and Mohd. Satola sons of Mohd. Umar filed an application under Section 14-A(i) of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred as the Security of Land Tenures Act), seeking the ejectment of Mansa Ram i.e. the petitioner before us, on the sole ground of non payment of rent. The period during which the rent was allegedly not paid was for the years 1991 to 1994. The aforesaid application was filed on 02.08.1994. The ejectment appliction was vehemently opposed by Mansa Ram. After recording the evidence of the rival parties, the Assistant Collector, Ist Grade, Panipat, by his order dated 31.08.2000, dismissed the ejectment application. Dissatisfied with Civil Writ Petition No. 12563 of 2006 2 the order passed by the Assistant Collector, Ist Grade, Panipat dated 31.08.2000, the landlords preferred an appeal before the Collector, Panipat. The Collector, Panipat, by his order dated 19.06.2001, remanded the case back to the Assistant Collector, Ist Grade, Panipat, for re-determination. The issue of remand is apparent from the following observations recorded in the order dated 19.06.2001:- “After hearing the arguments of both the parties and after the perusal of the record, I have come to the conclusion that before the issue of orders by the court below, the file has not been carefully perused. Amendment was made in the Punjab Security of Land Tenure Act, in the year 1991 that if Lagan is paid within 15 days, then action of ejectment cannot be taken. On perusal of the file of the Court below, it is evident that the respondent did not deposit the lagan within 15 days. At page 51 of the file of the Court below, on 02.11.1994, proceedings for tender of lagan is shown to have been taken, whereas at page 65 of this very file, it is recorded in the proceeding of 02.11.94 “respondent will pay batai, as per separate orders available in the file meaning thereby that batai was not paid on that day. On 02.11.94, the case was fixed for 23.11.94. In the proceedings of that day, it is clearly written that the respondent want time for deposit of Batai and for submission of written reply, it may be put up on 07.12.94, for deposit of batai and for submission of written reply, likewise proceedings was written on 07.12.94 and the case has been postponed for Civil Writ Petition No. 12563 of 2006 3 6.1.95. In the proceeding dated 6.1.95, it is recorded about the filing of the written reply. In this way, it is fully clear that the out of tender made on 02.11.94 or proceedings 02.11.94, 23.11.95 and 07.12.94, one is wrong. If tender of lagan had been done on 02.11.94, then there was no need to give time for the deposit of lagan, in the proceeding. In this way, the order passed by the court below is defective. So, in view of these circumstances, by setting aside the appellate order passed by the court below, the case is remanded to the court below with the direction that the court may decide the case after hearing both the parties, on the proceedings dated 02.11.94, and the proceedings written thereafter, on the basis of merits and demerits.” It is the case of the parties before us that it was apparent from the order of the Collector, Panipat dated 19.06.2001, that on the one hand, the tenant, Mansa Ram, claimed to have tendered the lagaan, interest and costs on 02.11.1994, i.e. from the date, on which, the same was determined by the Assistant Collector, Ist Grade, Panipat. Whereas, on the other hand the said payment was contested on the basis of the zimini orders dated 02.11.1994, 23.11.1994, 07.12.1994 and 06.01.1995. Section 14-A of the Security of land Tenures Act, which is relevant for the present controversy, is being extracted hereunder:- “14-A. Not with standing anything to the contrary contained in any other law for the time being in force, and subject to the provisions of section 9-A:- Civil Writ Petition No. 12563 of 2006 4 (i) a land owner 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 sub-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 tenants rights to compensation and acquisition of occupancy rights, if any under the Punjab Tenancy Act, 1887 ( XVI of 1887), shall not be affected; [Provided that if the tenant makes payment of arrears of rent and interest, to be calculated by the Assistant Collector, First Grade, at eight percentum per annum on such arrears together with such costs of the application, if any, as may be allowed by the Assistant Collector, First Grade, either on the day of first hearing or within fifteen days from the date of such hearing, he shall not be ejected.] (ii) 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 Civil Writ Petition No. 12563 of 2006 5 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 landlords 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 landlord refuses to accept rent from his tenant or demands 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 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 may be, or both ,within 60 days of the receipt of the notice.” A perusal of clause (ii) of the Section 14-A of the Security of land Tenures Act reveals, that Assistant Collector, Ist Grade, Panipat, is Civil Writ Petition No. 12563 of 2006 6 required to calculate the arrears of rent, interest at the rate of 8% and costs, whereupon, the tenant has the liberty to deposit the same within 15 days from the date of such determination. It is not a matter of dispute, that the Assistant Collector, Ist Grade, Panipat made the aforesaid calculation on 02.11.1994. The order dated 02.11.1994 calculating lagaan, interest and costs is being extracted hereunder:- “ Interest at the rate of 8% per annum, 5 maunds 13 seers on the aforesaid lagan (i.e. 3 maunds 22 seers wheat and 1 maund 37 seers paddy and) cost of application thereon of Rs.100/- is assessed.” In furtherance of the aforesaid determination rendered at the hands of the Assistant Collector, Ist Grade, Panipat, the statement of the tenant, Mansa Ram, was recorded on the same date 02.11.1994. The statement of Mansa Ram is being extracted hereunder: “Stated that rate of lagan 39 maunds and 33 seers 12 chatank total grain in which 26 maunds and 26 seers and 8 chatank wheat and 13 maunds 11 seers and 4 chatank paddy as agreed lagan and 3 maunds 22 seers wheat 1 maunds 31 seers paddy as thereon interest and assessed by the Hon'ble Court and cost of application oif Rs.100/- tender the lagan unconditional and also tender the lagan kharif for 1994, 4 maunds 4 seers paddy.” Likewise the statement of Mohd. Farooq son of Mohd. Umar i.e., one of the landlords was recorded on the same day, i.e. On 02.11.1994, which is Civil Writ Petition No. 12563 of 2006 7 also being extracted hereunder:- “Stated that received the tendered lagan along with cost and interest assessed by the Court, but the tendered lagan is short, therefore, I do not drop the objection of non payment of lagan. The agreed rate of lagan between the parties is 8 quintals wheat in Rabbi and 4 quintals paddy in kharif every year which the respondent is not paying intentionally.” The statement made by Mohd. Farooq before the Assistant Collector, Ist Grade, Panipat dated 02.11.1994, is not subject matter of dispute (even at the hands of respondents No. 6 to 9). From the extract from the original record as have been reproduced hereinabove, it is clear, that the lagaan, interest and costs were calculated by the Assistant Collector, Ist Grade, Panipat on 02.11.1994. The tender thereof was also made by Mansa Ram, the tenant, on the same day i.e. 02.11.1994. The tender made by Mansa Ram, was also accepted (though the same was contested as being short) by Mohd. Farooq on the same day i.e. 02.11.1994. Insofar as the remand order extracted hereinabove is concerned, the same is primarily based on the three zimini orders dated 02.11.1994, 23.11.1994 and 07.12.1994 passed by the Assistant Collector, Ist Grade, Panipat. The aforesaid zimini orders passed by the Assistant Collect, Ist Grade, Panipat, are also being reproduced hereunder: “Order dated 02.11.1994 Counsel for the parties present. Statements of parties are recorded. The respondents shall pay the batai as per the terms of the separate order which Civil Writ Petition No. 12563 of 2006 8 is in the file. Now the case be put up for written statement on 23.11.1994. Order dated 23.11.1994 Counsel for the parties present. Counsel for the respondents seeks time for depositing the batai and for filing the written statement. Case be put for 07.12.1994 for deposit of batai and filing of written statement.” Order dated 7.12.1994 Counsel for the parties present. Counsel for the respondents seeks time for depositing the batai and for filing the written statement. Case be put up for 06.01.1995 for deposit of batai and filing of written statement.” Consequent upon the remand, the only issue, that needed to be re-determinated by the Assistant Collector Ist Grade, Panipat was, whether there was a mistake in recording the tender of lagaan, interest and costs, as well as, the acceptance thereof on 02.11.1994, or there was a mistake in recording the zimini orders, extracted hereinabove. While determining the aforesaid issue, consequent upon the remand of the matter by the Collector, Panipat, vide his order dated 19.06.2001, the Assistant Collector, Ist Grade, Panipat, arrived at the conclusion, that the zimini orders were correct, and that, the tender of lagaan, interest and costs allegedly made by the tenant, Mansa Ram, being in conflict therewith, was incorrect. This conclusion was recorded by the Civil Writ Petition No. 12563 of 2006 9 Assistant Collector, Ist Grade, Panipat in his order dated 21.04.2005, which was to the following effect:- “The proceedings mentioned in the order dated 2.11.1994 regarding the tender the tender are wrong because after 02.11.1994 on 23.11.1994 and 07.12.1994, time was given to the respondents to pay the lagan. If the grains had been given in lieu of the lagan in Court on 2.1.1994, there would have no justification for payment of the lagan on the subsequent dates on 23.11.1994, 7.12.1994 and 06.1.1995.” In fact, the Assistant Collector, Ist Grade, Panipat, while passing the order dated 21.04.2005 also took into consideration other evidence in support of the same conclusion. The other evidence taken into consideration (which has been referred to in the order passed by the Assistant Collector, Ist Grade, Panipat), is also reproduced hereunder:- “In addition to this, there is discrepancies in the statements of the respondents themselves. Zile Singh has stated in his statement that he had brought the wheat in Court whereas in the tender proceedings ziri was mentioned. He also stated that grain was not weighed in the Court, but the same was weighed at the house, whereas in their statements Mansa, Rajinder and Baldeva have stated that the grain was weighed in the Court. In addition to this, in their statements the respondents have stated that the grain was given to Ajam petitioner whereas there is no signatures of Ajam in the tender proceedings nor his attendance has been marked. From the above facts, it is Civil Writ Petition No. 12563 of 2006 10 clear that on 2.11.1994 no lagan was given on that day.” Dissatisfied with the order passed by the Assistant Collector, Ist Grade, Panipat dated 21.04.2005, Mansa Ram, tenant, preferred an appeal before the Collector, Panipat. The aforesaid appeal was dismissed on 23.08.2005. This led to the filing of a revision petition before the Commissioner, Rohtak Division (Camp at Panipat), which was also dismissed by an order dated 08.12.2005. The petitioner then preferred a second revision petition, which was dismissed by the Financial Commissioner, Haryana by his order dated 08.05.2006. Through the instant writ petition, the petitioner has impugned the order passed by the Assistant Collector, Ist Grade, Panipat dated 21.04.2005 (Annexure P-6), the order passed by the Collector, Panipat dated 23.08.2005 (Annexure P-7), the order passed by the Commissioner, Rohtak Division (Camp at Panipat) dated 08.12.2005 (Annexure P-8), and the final order passed by the Financial Commissioner, Haryana dated 08.05.2006 (Annexure P-9). In sum and substance all the orders right from the order passed by the Assistant Collector, Ist Grade, Panipat to the order passed by the final authority, namely, Financial Commissioner, Haryana, are against the assertion made by Mansa Ram i.e., the tenant, who is petitioner before us. We have also been confronted with the same issue, as was subject matter before the authorities referred to herein above, namely, whether the petitioner, Mansa Ram, had tendered the lagaan, interest and costs on the same day, as it was assessed by the Assistant Collector, Ist Grade, Panipat i.e. on 2.11.1994, or that he had never made any tender of Civil Writ Petition No. 12563 of 2006 11 lagaan, interest and costs. It is the vehement contention of the learned counsel for the respondents, that the lagaan, interest and costs must never be deemed to have been tendered by the tenant, as the zimini orders dated 02.11.1994, 23.11.1994 and 07.12.1994 (which have been extracted hereinabove) clearly demonstrate to the controversy. Likewise, it is the contention of the learned counsel for the respondents on the basis of contradictory statements made on behalf of the petitioner-tenant, that no tender was actually made of either lagaan, interest or costs before the Assistant Collector, Ist Grade, Panipat on 02.11.1994. As against the aforesaid contention advanced on behalf of the respondents, emphatic reliance has been placed on the statement of one of the landlords, namely, Mohd Farooq, recorded on 02.11.1994 (extracted above) in the presence of the Assistant Collector, Ist Grade, Panipat, acknowledging tender of lagaan, interest and costs at the hands of the petitioner (the aforesaid statement of Mohd. Farooq recorded in the presence of the Assistant Collector, Ist Grade, Panipat, has been extracted herein above). Reliance has also been placed on the statement of one of the tenants, namely, Mansa Ram, recorded on 02.11.1994 (extracted above), in the presence of the Assistant Collector Ist Grade, Panipat, asserting tender of lagan, interest and costs at the hands of the tenants on 02.11.1994. Accordingly, it is the vehement contention of the learned counsel for the petitioners, that the petitioners have fully established tender of rent to the landlords before the Assistant Collector Ist Grade, Panipat. We have given our thoughtful consideration to the controversy Civil Writ Petition No. 12563 of 2006 12 as has been noticed hereinabove. We are of the considered view, that the petitioner, tenants have been successful in establishing that they factually tendered lagaan, interest and costs on 02.11.1994. This determination of ours is based on the statement of Mansa Ram, made before the Assistant Collector, Ist Grade, Panipat on 02.11.1994, itself, the said statement bears the signatures of the Assistant Collector. Our conclusion also flows from the statement made by Mohd. Farooq before the Assistant Collector, Ist Grade, Panipat on 02.11.1994, wherein one of the landlords had acknowledged that the lagaan, interest and costs had been tendered, this statement also bears the signatures of the Assistant Collector. The only dispute raised by the landlord, who had accepted the tender of lagaan, interest and costs before the Assistant Collector, Ist Grade, Panipat on 02.11.1994 (Mohd Farooq) was that the lagaan between the parties is 8 quintals for wheat in Rabi and 4 quintals for paddy in Kharif every year, whereas the tender has been made in mounds. During the course of hearing, we repeatedly inquired from the learned counsel representing respondents No. 6 to 9 whether he disputed the statement of Mohd.Farooq recorded before the Assistant Collector, Ist Grade, Panipat on 02.11.2004. Learned counsel for the respondents No. 6 to 9 neither denied the aforesaid statement, nor the signatures of Mohd. Farooq thereon. The statement of Mohd. Farook having not been disputed leaves no ambiguity in the matter, i.e. that the tenants had actually made the tender on 02.11.2004. In our determination, we have accepted the statements recorded by Mansa Ram and Mohd. Farooq on 02.11.1994 before the Assistant Collector, Ist Grade, Panipat, while not accepting the zimini Civil Writ Petition No. 12563 of 2006 13 orders dated 02.11.1994, 23.11.1994 and 07.12.1994. It is necessary for us to record our view on the said zimini orders as well. There can be no dispute about the fact that the parties to litigation are always oblivious of the zimini orders passed by the Courts. The same are neither shown to the parties. There is really never any occasion for a party to examine zimini orders. The zimini orders relied upon by the landlords are in fact orders by which proceedings were adjourned from time to time. These orders of adjournment are (unlike the orders relied upon by the rival party) not signed either by the petitioners-tenants or the respondents-landlords. The petitioner, Mansa Ram, would have obviously contested the zimini orders dated 02.11.1994, 23.11.1994 and 07.12.1994, had he been aware of the fact that the Presiding Officer had recorded therein that he would pay batai, in terms of the orders passed by the Assistant Collector, Ist Grade, Panipat, whereas as a matter of fact, he had already paid batai, interest and costs. The aforesaid payment had also been acknowledged even by one of the landlords, as has been noticed herein above. The aforesaid zimini orders, in our view, cannot have the effect of unsettling the express statements made at the hands of the rival parties, namely, Mansa Ram and Mohd. Farooq on 02.11.1994. The former asserted the payment of lagaan, interest and costs, and the latter, acknowledged the receipt of the same subject to some deficiency. For the reasons recorded hereinabove, we are satisfied that Mansa Ram paid lagaan, interest and costs on 02.11.1994 i.e. on the same day, it was assessed by the Assistant Collector, Ist Grade, Panipat. Since lagaan, interest and costs, had been paid within 15 days for the payment thereof, in terms of the provisions of Section 14-A (i) of the Civil Writ Petition No. 12563 of 2006 14 Security of Land Tenures Act, we are of the view that the tender made by Mansa Ram was fully justified. For the reasons recorded hereinabove, the instant writ petition is allowed and the orders passed by the Assistant Collector, Ist Grade, Panipat dated 21.04.2005 (Annexure P-6), the order passed by the Collector, Panipat dated 23.08.2005 (Annexure P-7), the order passed by the Commissioner, Rohtak Division, Camp at Sonepat dated 08.12.2005 (Annexure P-8) and the final order passed by the Financial Commissioner, Haryana dated 08.05.2006 (Annexure P-9), are hereby set aside. It will be relevant for us to record, that during the course of hearing, the rival parties did not raise any submission to contest the adequacy of the tender made by the petitioners-tenants on 02.11.1994 before the Assistant Collector, Ist Grade, Panipat. The instant writ petition accordingly stands allowed in the aforesaid terms. [J.S.Khehar] Judge [Nirmaljit Kaur] Judge November 12, 2008 mohan