JITO Vs. FINANCIAL COMMISSIONER APPEALS

JUDGEMENT

(1.) THIS writ petition is filed invoking the certiorarial jurisdiction of this Court under Article 226 of the Constitution of India to quash the order of the Financial Commissioner dated September 7, 1984 (Annexure P-5 ).

(2.) THE petitioner is the daughter of Smt. Palo. In view of lands lost by her in Pakistan, Palo, an evacuee had been allotted land of 84 kanals 8 marlas in the revenue estate of village chak Bhangewala. After the death of Palo, the petitioner being her only daughter succeeded to her property. She filed an application Under Section 9 read with Section 14-A (ii) of the Punjab Security of Land Tenures Act, 1953, for eviction of the respondents Udham and Arjan Singh. According to her, the respondents Udham Singh and Arjan Singh are her tenants and they agreed to pay the rent at l/3rd of the produce and as they failed to pay the rent, they made themselves liable to be evicted Under Section 9 (1) (ii) read with Section 14-A (ii) of the Punjab Security of Land Tenures Act, 1953. The said application was allowed by the Assistant Collector First Grade vide his order dated October 7, 1981 (Annexure P-2) who ordered ejectment of the respondents from the land. The respondents Udham Singh and Arjan Singh preferred an appeal to the Collector, who dismissed the appeal by his order dated February 12, 1982. The revision filed by them before the Additional Commissioner was also unsuccessful. Thereafter the respondents filed a further revision before the Financial Commissioner Under Section 24 of the Act, who allowed the Revision Petition vide impugned order dated September 7, 1984, and remanded the matter to the Assistant Collector, to decide the question as to whether the land revenue has been paid by the respondents Udham Singh and Arjan Singh or not. Challenging the said order of the Financial Commissioner the petitioner has filed this writ petition. In the written statement filed by the respondents before the Assistant Collector, the respondents took the plea that there exists no relationship of landlord and tenant between the petitioner and the respondents and that they being the near relations of the petitioner have been giving some gifts to her in lieu of share of produce from time to time.

(3.) THE next question to be decided is whether there is an agreement to pay the rent and whether there is failure or default in payment of rent by the respondent. Though the petitioner claimed that the rent payable is l/3rd of the produce the said contention was negatived in the earlier proceedings by the Financial Commissioner in his order dated February 24, 1977. The said order has been attached to the written statement as Annexure R-I. In column 9 of the jamabandi for the year 1955-56, it was recorded as "hasab Parta deh Bawajah Rishtedari" which admittedly means that the rent payable is equivalent to the land revenue. The Financial Commissioner in his impugned order has clearly stated that the entry in the jamabandi means that the rent payable is equivalent to the land revenue. Therefore, it is clear that the landlord-petitioner is entitled to receive the amount which is equivalent to the land revenue payable on the land. From the order of the Financial Commissioner dated February 24, 1977 and also from the impugned order of the Financial Commissioner it can be seen that the land revenue payable is Rs. 15. 67 per year. There is no evidence on record to show that the respondents have paid even this amount to the landlady. Further in the written statement, the respondents clearly stated that they have been giving gifts to the respondents in lieu of her share in the produce. That means that the alleged 'gift' is not without consideration and a voluntary payment. The so-called 'gift' is in lieu of payment of rent or in lieu of the share of the produce payable to the landlady. Thus, it is clear that some amount of rent is payable to the landlady in lieu of her share in the produce. No evidence has been adduced by the respondents that they paid any amount even the amount equivalent to land revenue of Rs. 15. 67 to the landlady. The payment of land revenue to the Government cannot be taken as payment of rent to the landlady. Further, the rent even according to the Jamabandi entry is the amount equivalent to the amount of land revenue. Therefore, the rent is to be paid separately from the land revenue. The payment of land revenue to the Government does not amount to payment of rent by the respondents to the landlady. Thus there is a clear default in payment of rent. Due to this default in payment of rent, provisions of Section 9 of the Punjab Security of Land Tenures Act are applicable and therefore, the landlady is entitled to seek eviction of the tenant Under Section 14-A of the said Act. The Financial Commissioner has set up a new case for the respondents which has not been pleaded by them. It is not the case of the respondents that they paid the land revenue to the Government and it amounts to payment of rent to the landlady. That was not the stand taken by the respondents in their written statement. In fact, the land revenue is quite different from the rent. The rent as can be seen from the Jamabandi entry is the amount equivalent to the land revenue. Rent is defined in sub-section 3 of Section 4 as follows :