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2013 DIGILAW 163 (PNJ)

Balbir Singh v. Financial Commissioner, Haryana

2013-02-08

RAMESHWAR SINGH MALIK

body2013
Judgment Rameshwar Singh Malik, J. The present petition is directed against the order dated 19.9.2012 (Annexure P-7), passed by Financial Commissioner, upholding the order dated 15.5.2012, passed by the Commissioner, Gurgaon Division and the order dated 15.12.2011, passed by the District Collector, Palwal, whereby the ejectment order dated 13.6.2011 (Annexure P-4), passed by the Assistant Collector, Ist Grade, Palwal, was set aside and the case was remanded for deciding the matter afresh, keeping in view the order passed by this court. The brief facts of the case are that the petitioners are the land owners and respondent no.2 is the tenant. This is the second round of litigation between them. In the first round of litigation, respondent no.2-tenant approached this court, vide CWP No.9762 of 2007, which was disposed of vide order dated 12.12.2008, in terms of the order of even date passed in CWP No.9032 of 2007 (Sukhram Vs. Financial Commissioner, Haryana and others). After discussing the facts of the case in detail and also in view of the provisions of law applicable thereof, particularly Section 14-A(i) including proviso of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as `the Act'), a Division Bench of this court allowed the writ petition of the respondent-tenant. Ejectment orders were set aside, as the same had been passed by the Assistant Collector, Ist Grade, Palwal, without calculating the arrears of rent, interest and cost, to enable the respondent-tenant to make a deposit thereof, within a stipulated period as provided under proviso to Section14-A(i) of the Act. The case was remanded back to the Assistant Collector, Ist Grade, Palwal, for re-determination of the controversy in terms of the observations made by the Division Bench, vide its order dated 12.12.2008 (Annexure P-2). Dissatisfied, the order dated 12.12.2008 passed by this court was challenged on behalf of the petitioners before the Hon'ble Supreme Court. The S.L.P. was also dismissed, vide order dated 16.2.2009 (Annexure P-3), however, leaving all questions of law open to be decided in the appropriate case before an appropriate forum. Consequently, the parties appeared before the Assistant Collector, Ist Grade, Palwal, who again committed the same error of law, which was committed earlier. This time also, the amount of rent, interest and cost were not calculated, enabling the respondent-tenant to deposit the same within the stipulated period, as envisaged under proviso to Section 14-A (i) of the Act. Consequently, the parties appeared before the Assistant Collector, Ist Grade, Palwal, who again committed the same error of law, which was committed earlier. This time also, the amount of rent, interest and cost were not calculated, enabling the respondent-tenant to deposit the same within the stipulated period, as envisaged under proviso to Section 14-A (i) of the Act. The Assistant Collector, Ist Grade, Palwal, ordered the ejectment of the respondent-tenant, vide order dated 13.6.2011 (Annexure P-4). Respondent-tenant filed his appeal before the Collector, who accepted the same, vide order dated 15.12.2011 (Annexure P-5), remanding the case back to the Assistant Collector, Ist Grade, with a direction to decide the case afresh, keeping in view the directions issued by this court, vide above said order dated 12.12.2008 (Annexure P-2). The order of the District Collector was challenged in the appeal filed on behalf of the petitioners. However, the same was dismissed by the Commissioner, vide his order dated 15.5.2012 (Annexure P-6), thereby upholding the order of the District Collector. The petitioners filed revision before the Financial Commissioner, which was also dismissed, vide impugned order dated 19.9.2012 (Annexure P-7), thereby upholding the orders passed by the Commissioner, as well as the District Collector. Thus, feeling aggrieved against the orders passed by the Collector, Commissioner and the Financial Commissioner, the petitioners have approached this court by way of instant petition, under Article 226 of the Constitution of India, invoking its writ jurisdiction, seeking a writ in the nature of Certiorari for quashing the impugned orders. That is how this court is seized of the matter. Learned Senior counsel for the petitioners submits that the District Collector, Commissioner as well as the Financial Commissioner have committed error of law, while passing the impugned orders. The star argument raised by learned Senior counsel was that since the rate of rent was fixed, which was known to the respondent-tenant, there was nothing to be calculated as such by the Assistant Collector, Ist Grade. He further submits that since the respondent-tenant had failed to pay the rent for the crops from Kharif 1993 to Rabi 1996 in time, ejectment has been rightly ordered. Learned Senior counsel finally prays for allowing the writ petition and setting aside of the impugned orders. In support of his arguments, he relied upon judgments of the Hon'ble Supreme Court in Mrs. Raj Kanta Vs. Learned Senior counsel finally prays for allowing the writ petition and setting aside of the impugned orders. In support of his arguments, he relied upon judgments of the Hon'ble Supreme Court in Mrs. Raj Kanta Vs. Financial Commissioner, Punjab and another, 1980 PLJ 346 and judgment of this court in Amar Nath Vs. Financial Commissioner, Haryana and others, 1994 PLJ 405, Parkash and others Vs. Financial Commissioner, Revenue, Haryana and others, 1996 PLJ DB 18, Gian Chand and others Vs. Financial Commissioner, Haryana and others, 1999(1) PLJ DB 116 and Surinder Singh Vs. Financial Commissioner, Punjab and others, 2001 (1) PLJ DB 40. Having heard the learned Senior counsel for the petitioners at considerable length, after going through the record of the case and giving thoughtful consideration to the contentions raised, this court is of the considered opinion that present writ petition is misconceived and without any merit. It is liable to be dismissed. To say so, reasons are more than one, which are being recorded hereinafter. The star argument raised by the learned Senior counsel for the petitioners, that since the rent was fixed and was known to the respondent tenant, nothing was to be calculated, seems to be attractive on first blush, but when examined going deep in the context of the peculiar fact situation of the present case, coupled with the statutory provisions contained in Section 14-A(i) and proviso thereto, interpreted by a Division Bench of this court in this very case between these very parties, the argument has been found to be misconceived and without any force. Further, the judgment of the Hon'ble Supreme Court in Raj Kanta's case (supra) as well as Parkash's case (supra) were cited by the learned Senior counsel before the Division Bench of this court, while arguing the earlier round of litigation on behalf of the present petitioners, who were respondents no.3 and 4 in CWP No.9762 of 2007 decided with CWP No.9032 of 2007, vide order dated 12.12.2008 (Annexure P-2). In view of the facts noted above, the present controversy has been narrowed down only to the extent, whether Assistant Collector, Ist Grade, Palwal, while passing the ejectment order dated 13.6.2011 (Annexure P-4), has complied with the directions issued by the Division Bench of this court, vide order dated 12.12.2008. In view of the facts noted above, the present controversy has been narrowed down only to the extent, whether Assistant Collector, Ist Grade, Palwal, while passing the ejectment order dated 13.6.2011 (Annexure P-4), has complied with the directions issued by the Division Bench of this court, vide order dated 12.12.2008. If the answer is found in the negative then next issue is, whether the Collector, Commissioner and Financial Commissioner have committed any error of law, while passing the impugned orders. It has gone undisputed on record that while passing the ejectment order dated 13.6.2011 (Annexure P-4), Assistant Collector, Ist Grade, Palwal, did not calculate the arrears of rent, interest and cost, as envisaged under proviso to Section 14-A(i) of the Act and as directed by a Division Bench of this court, vide order dated 12.12.2008 (Annexure P-2). On the other hand, he ordered the ejectment of the respondent-tenant in accordance with the earlier orders passed by the Collector and Financial Commissioner, which had already been set aside by this court. The operative part of the order dated 13.6.2011, passed by the Assistant Collector, Ist Grade, Palwal, reads as under :- “The respondent has been ejected by the order dated 21.11.2002 passed by the District Collector on account of non-payment of rent of the disputed land for Kharif 1993 to Rabi 1996 in time. This order has been upheld by the Ld. Financial Commissioner vide order dated 14.8.2006. I, therefore, order ejectment of the respondent from the disputed land in accordance with the order passed by District Collector dated 21.11.2002 and Ld. Financial Commissioner dated 14.8.2006. Order pronounced. The file be consigned to record room.” The above said order was challenged by the tenant-respondent before the Collector, who accepted the appeal of the tenant-respondent and remanded the case back to the Assistant Collector, Ist Grade for deciding the matter afresh, keeping in view the directions issued by this court. The operative part of the order dated 15.12.2011 (Annexure P-5), passed by the District Collector, Palwal, reads as under :- “After hearing the arguments of learned counsel for both the parties and carefully going through the original record, I have come to conclusion that the lower court has not kept in view the order of the Hon'ble High Court dated 12.12.2008 and passed the order while arguing with the orders of the District Collector, Faridabad dated 21.11.2002 and Financial Commissioner dated 14.8.2006. While both these orders have been set aside by Hon'ble High Court vide its order dated 12.12.2008. I therefore, while accepting the submissions of the learned counsel for the appellant accept the appeal and remand the case to Assistant collector, Ist Grade, Palwal, with the direction to decide the case within 3 months keeping in view the order passed by Hon'ble High Court. Both the parties have been directed to appear before the court of Assistant Collector, Ist Grade, Palwal, on 4.1.2012. Pronounced in open court on 15.12.2011. Records be consigned.” The matter was again re-examined in detail by the Commissioner, who also found, as a matter of fact, that the directions issued by this court, vide above said order dated 12.12.2008 have not been complied with and the ejectment order was passed by the Assistant Collector, Ist Grade, only on the basis of earlier orders passed by the Collector and the Financial Commissioner, which had already been set aside by this court. The observations made by the Commissioner, Gurgaon Division, in the operative part of his order dated 15.5.2012, read as under :- “The order dated 13.6.2011 passed by Assistant Collector, Ist Grade for ejectment of the respondents is wrong. The Assistant Collector Ist Class has not complied with the orders dated 12.12.2008 passed by Hon'ble High Court and while agreeing with the order dated 21.11.2002 of District Collector, Faridabad and Hon'ble Financial Commissioner Revenue dated 14.8.2006 and thus passed the orders whereas both these orders were set aside by Hon'ble High Court vide its order dated 12.12.2008. Thus, the Assistant collector Ist Class has not complied with the orders passed by Hon'ble High Court and has passed the orders which are erroneous and are not based on facts. The District Collector has rightly remanded the case to the Assistant Collector Ist Grade and no fault can be found in it. Thus, I find no ground to modify the order passed by District collector and dismissed the appeal of the appellant which is without any basis.” Similarly, the Financial Commissioner, Haryana, expressed the anguish against the manner in which Assistant Collector, Ist Grade, Palwal, had passed the ejectment order dated 13.6.2011, altogether ignoring the directions issued by this court. Thus, I find no ground to modify the order passed by District collector and dismissed the appeal of the appellant which is without any basis.” Similarly, the Financial Commissioner, Haryana, expressed the anguish against the manner in which Assistant Collector, Ist Grade, Palwal, had passed the ejectment order dated 13.6.2011, altogether ignoring the directions issued by this court. The operative part of the impugned order dated 19.9.2012, passed by the Financial Commissioner, vide Annexure P-7, reads as under :- “I have gone through the contents of revision petition, impugned orders dated 15.5.2012 and 15.12.2011 passed by Commissioner and Collector respectively, order dated 13.6.2011 passed by SDO(C)-cum A.C. Ist Grade, Palwal, High Court order dated 12.12.2008, Apex Court order dated 16.2.2009 and relevant provisions of Punjab Law 1953. There is not a scintilla of doubt that as per proviso to Section 14-A of the said Act, it is incumbent upon A.C. Ist Grade to make calculations about arrears of rent alongwith interest @ 8% per annum on such arrears together with such costs of the application, if any, as may be allowed by the Assistant Collector, Ist Grade, either on the day of first hearing or within fifteen days from the date of such hearing. Further, in the eventuality of non-payment as per calculation made in the manner enunciated above, the tenant can be ejected. It is pertinent to mention here that Hon'ble High Court vide its order dated 12.12.2008 has specifically directed to make calculations of arrears of rent, interest and cost so as to enable the petitioner-tenants to make a deposit thereof within the mandate of the proviso to Section 14-A(i) of the said Act of 1953, which has not been done by A.C. Ist Grade. This is a blatant misuse of authority in total disregard to canons of legal jurisprudence. Accordingly, connivance of the said officer is writ large from a bare perusal of the order dated 13.6.2011 and did not require any further proof. Chief Secretary, Haryana is requested to initiate disciplinary proceedings for major penalty against Shri Om Parkash, HCS, SDO (Civil) Palwal, exercising the powers of A.C. Ist Grade, who has passed the order dated 13.6.2011 in utter violation of the statutory provisions of Punjab Security of Land Tenures Act, 1953 especially violating the directions given by Hon'ble High Court in its order dated 12.12.2008. In view of the above, there appears no infirmity in the impugned order dated 15.12.2011 and 15.5.2012 passed by Collector, Palwal and Commissioner, Gurgaon Division, Gurgaon, respectively and both are in accordance with the provisions of the statute and directions given by Hon'ble High Court in its order dated 12.12.2008. Hence revision is dismissed in limine, being devoid of merit.” A careful and combined reading of the orders dated 12.12.2008 (Annexure P-2), passed by this court, ejectment orders dated 13.6.2011 (Annexure P-4), passed by the Assistant Collector, Ist Grade, Palwal, as well as the orders passed by the Collector, Commissioner and Financial Commissioner, leaves no room for doubt that Assistant Collector, Ist Grade, Palwal, miserably failed to apply his judicious mind, while not following the categoric directions issued by the Division Bench of this court. Having said that, this court feels no hesitation to conclude, that the orders passed by the Collector, Commissioner and the Financial Commissioner, appended as Annexures P-5, P-6 and P-7 respectively, do not suffer from any patent illegality or perversity. The Collector, Commissioner and Financial Commissioner have rightly come to the judicious conclusion before passing their respective impugned orders, which deserve to be upheld. So far as the judgments relied upon by the learned Senior counsel for the petitioners are concerned, there is no dispute regarding the law laid down therein, but all the judgments are clearly distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be seen, considered and appreciated first before applying any codified or judge made law thereto. Sometimes, even one additional fact can make the world of difference, as held by the Hon'ble Supreme Court. The relevant observations made by the Hon'ble Supreme Court in Padmasundara Rao (Dead) Vs. State of T.N. and others, 2002(3) SCC 533 , which can be gainfully followed in the present case, read as under :- “Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. State of T.N. and others, 2002(3) SCC 533 , which can be gainfully followed in the present case, read as under :- “Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered the judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington V. British Railways Board, 1972(2) WLR 537. Circumstantial flexibility, one additional or different fact may make world of difference between conclusions in two cases.” Since the Division Bench of this court, while deciding exactly this very issue between these very parties has categorically held, remanding the matter back to the Assistant Collector, Ist Grade, Palwal, to calculate the arrears of rent, interest and cost, as per the mandatory provision of Section 14-A(i) of the Act, Assistant Collector, Ist Grade, Palwal, was duty bound and it was expected from him to follow meticulously the directions issued by this court, vide order dated 12.12.2008 (Annexure P-2). Since no such issue was involved before the court in any of the judgments relied upon by the learned Senior counsel for the petitioners, there was no scope for deciding the same because of which none of the judgments, relied upon by the learned Senior counsel for the petitioners, is applicable to the peculiar fact situation of the present case. Further, during the course of arguments, learned Senior counsel for the petitioners failed to point out any patent illegality or perversity in either of the impugned orders passed by the Collector, Commissioner and the Financial Commissioner. The Collector, Commissioner as well as the Financial Commissioner have recorded cogent reasons, while passing their respective impugned orders. No prejudice has been shown to have been caused to the petitioners by passing the impugned orders, recording concurrent findings. No other argument was raised. Considering the peculiar facts and circumstances of the present case, coupled with the reasons aforementioned, it is unhesitatingly held that the impugned orders are factually correct and legally justified. The present writ petition is bereft of any merit and without any substance, thus, it must fail. No case for interference has been made out. No other argument was raised. Considering the peculiar facts and circumstances of the present case, coupled with the reasons aforementioned, it is unhesitatingly held that the impugned orders are factually correct and legally justified. The present writ petition is bereft of any merit and without any substance, thus, it must fail. No case for interference has been made out. Resultantly, the instant writ petition is ordered to be dismissed.