Krishna Bhatacharjee Vs. Sarathi Choudhury and ANR [SC 2015 November]

KEYWORDS:-STRIDHAN – DOMESTIC VIOLENCE-

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DATED:-November 20, 2015-

ACT: Domestic Violence Act

As long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act.

SUPREME COURT OF INDIA

Krishna Bhatacharjee Vs. Sarathi Choudhury and ANR.

[Criminal Appeal No. 1545 of 2015 @ SLP (CRL) No. 10223 of 2014]

Dipak Misra, J.

1. Leave granted.

2. The appellant having lost the battle for getting her Stridhan back from her husband, the first respondent herein, before the learned Magistrate on the ground that the claim preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, ‘the 2005 Act’) was not entertainable as she had ceased to be an “aggrieved person” under Section 2(a) of the 2005 Act and further that the claim as put forth was barred by limitation; preferred an appeal before the learned Additional Sessions Judge who concurred with the view expressed by the learned Magistrate, and being determined to get her lawful claim, she, despite the repeated non-success, approached the High Court of Tripura, Agartala in Criminal Revision No. 19 of 2014 with the hope that she will be victorious in the war to get her own property, but the High Court, as is perceivable, without much analysis, declined to interfere by passing an order with Spartan austerity possibly thinking lack of reasoning is equivalent to a magnificent virtue and that had led the agonised and perturbed wife to prefer the present appeal, by special leave.

3. Prior to the narration of facts which are essential for adjudication of this appeal, we may state that the 2005 Act has been legislated, as its Preamble would reflect, to provide for more effective protection of the rights of the women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The 2005 Act is a detailed Act. The dictionary clause of the 2005 Act, which we shall advert to slightly at a later stage, is in a broader spectrum. The definition of “domestic violence” covers a range of violence which takes within its sweep “economic abuse” and the words “economic abuse”, as the provision would show, has many a facet.

4. Regard being had to the nature of the legislation, a more sensitive approach is expected from the courts where under the 2005 Act no relief can be granted, it should never be conceived of but, before throwing a petition at the threshold on the ground of maintainability, there has to be an apposite discussion and thorough deliberation on the issues raised. It should be borne in mind that helpless and hapless “aggrieved person” under the 2005 Act approaches the court under the compelling circumstances.

It is the duty of the court to scrutinise the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct. The principle “justice to the cause is equivalent to the salt of ocean” should be kept in mind. The court of law is bound to uphold the truth which sparkles when justice is done. Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.

5. Presently to the narration of the facts. The marriage between the appellant and the respondent No. 1 was solemnised on 27.11.2005 and they lived as husband and wife. As the allegations proceed, there was demand of dowry by the husband including his relatives and, demands not being satisfied, the appellant was driven out from the matrimonial home. However, due to intervention of the elderly people of the locality, there was some kind of conciliation as a consequence of which both the husband and the wife stayed in a rented house for two months. With the efflux of time, the husband filed a petition seeking judicial separation before the Family Court and eventually the said prayer was granted by the learned Judge, Family Court.

After the judicial separation, on 22.5.2010 the appellant filed an application under Section 12 of the 2005 Act before the Child Development Protection Officer (CDPO), O/O the District Inspector, Social Welfare & Social Education, A.D. Nagar, Agartala, Tripura West seeking necessary help as per the provisions contained in the 2005 Act. She sought seizure of Stridhan articles from the possession of the husband. The application which was made before the CDPO was forwarded by the said authority to the learned Chief Judicial Magistrate, Agartala Sadar, West Tripura by letter dated 1.6.2010. The learned Magistrate issued notice to the respondent who filed his written objections on 14.2.2011.

6. Before the learned Magistrate it was contended by the respondent that the application preferred by the wife was barred by limitation and that she could not have raised claim as regards Stridhan after the decree of judicial separation passed by the competent court. The learned Magistrate taking into consideration the admitted fact that respondent and the appellant had entered into wedlock treated her as an “aggrieved person”, but opined that no “domestic relationship” as defined under Section 2(f) of the 2005 Act existed between the parties and, therefore, wife was not entitled to file the application under Section 12 of the 2005 Act.

The learned Magistrate came to hold that though the parties had not been divorced but the decree of judicial separation would be an impediment for entertaining the application and being of this view, he opined that no domestic relationship subsisted under the 2005 Act and hence, no relief could be granted. Be it stated here that before the learned Magistrate, apart from herself, the appellant examined three witnesses and the husband had examined himself as DW-1. The learned Magistrate while dealing with the maintainability of the petition had noted the contentions of the parties as regards merits, but has really not recorded any finding thereon.

7. The aggrieved wife preferred criminal appeal No. 6(1) of 2014 which has been decided by the learned Additional Sessions Judge, Agartala holding, inter alia, that the object of the 2005 Act is primarily to give immediate relief to the victims; that as per the decision of this Court in Inderjit Singh Grewal v. State of Punjab[1] that Section 468 of the Code of Criminal Procedure applies to the proceedings under the 2005 Act and, therefore, her application was barred by time. Being of this view, the appellate court dismissed the appeal.

8. On a revision being preferred, the High Court, as is demonstrable from the impugned order, after referring to the decision in Inderjit Singh Grewal (supra), has stated that the wife had filed a criminal case under Section 498(A) IPC in the year 2006 and the husband had obtained a decree of judicial separation in 2008, and hence, the proceedings under the 2005 Act was barred by limitation. That apart, it has also in a way expressed the view that the proceedings under the 2005 Act was not maintainable.

9. In our prefatory note, we have stated about the need of sensitive approach to these kinds of cases. There can be erroneous perception of law, but as we find, neither the learned Magistrate nor the appellate court nor the High Court has made any effort to understand and appreciate the stand of the appellant. Such type of cases and at such stage should not travel to this Court. We are compelled to say so as we are of the considered opinion that had the appellate court and the High Court been more vigilant, in all possibility, there could have been adjudication on merits. Be that as it may.

10. The facts that we have enumerated as regards the “status of the parties”, “judicial separation” and “the claim for Stridhan” are not in dispute. Regard being had to the undisputed facts, it is necessary to appreciate the scheme of the 2005 Act. Section 2(a) defines “aggrieved person” which means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

Section 2(f) defines “domestic relationship” which means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Section 2(g) defines the term “domestic violence” which has been assigned and given the same meaning as in Section 3. Sub- section (iv) of Section 3 deals with “economic abuse”. As in the facts at hand, we are concerned with the “economic abuse”, we reproduce Section 3(iv) which reads as follows:-

“Section 3. Definition of domestic violence.

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”

11. Section 8(1) empowers the State Government to appoint such number of Protection Officers in each district as it may consider necessary and also to notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under the 2005 Act. The provision, as is manifest, is mandatory and the State Government is under the legal obligation to appoint such Protection Officers. Section 12 deals with application to Magistrate. Sub-sections (1) and (2) being relevant are reproduced below:-

“Section 12. Application to Magistrate.-

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.”

12. Section 18 deals with passing of protection orders by the Magistrate. Section 19 deals with the residence orders and Section 20 deals with monetary reliefs. Section 28 deals with procedure and stipulates that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Section 36 lays down that the provisions of the 2005 Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.

13. Having scanned the anatomy of the 2005 Act, we may now refer to a few decisions of this Courts that have dealt with the provisions of the 2005 Act. In V.D. Bhanot v. Savita Bhanot[2] the question arose whether the provisions of the 2005 Act can be made applicable in relation to an incident that had occurred prior to the coming into force of the said Act. Be it noted, the High Court had rejected the stand of the respondent therein that the provisions of the 2005 Act cannot be invoked if the occurrence had taken place prior to the coming into force of the 2005 Act.

This Court while dealing with the same referred to the decision rendered in the High Court which after considering the constitutional safeguards under Article 21 of the Constitution vis-à-vis the provisions of Sections 31 and 33 of the 2005 Act and after examining the Statement of Objects and Reasons for the enactment of the 2005 Act, had held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of the Constitution that Parliament enacted the 2005 Act in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them and further that a petition under the provisions of the 2005 Act is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. After analyzing the verdict of the High Court, the Court concurred with the view expressed by the High Court by stating thus:-

“We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.”

14. In Saraswathy v. Babu[3] a two-Judge Bench, after referring to the decision in V.D. Bhanot (supra), reiterated the principle.

It has been held therein:-

“We are of the view that the act of the respondent husband squarely comes within the ambit of Section 3 of the DVA, 2005, which defines “domestic violence” in wide terms. The High Court made an apparent error in holding that the conduct of the parties prior to the coming into force of the DVA, 2005 cannot be taken into consideration while passing an order. This is a case where the respondent husband has not complied with the order and direction passed by the trial court and the appellate court. He also misleads the Court by giving wrong statement before the High Court in the contempt petition filed by the appellant wife.

The appellant wife having being harassed since 2000 is entitled for protection order and residence order under Sections 18 and 19 of the DVA, 2005 along with the maintenance as allowed by the trial court under Section 20(1)(d) of the DVA, 2005. Apart from these reliefs, she is also entitled for compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent husband. Therefore, in addition to the reliefs granted by the courts below, we are of the view that the appellant wife should be compensated by the respondent husband. Hence, the respondent is hereby directed to pay compensation and damages to the extent of Rs 5,00,000 in favour of the appellant wife.”

15. In the instant case, as has been indicated earlier, the courts below as well as the High Court have referred to the decision in Inderjit Singh Grewal (supra). The said case has to be understood regard being had to the factual exposè therein. The Court had referred to the decision in D. Velusamy v. D. Patchaiammal[4] wherein this Court had considered the expression “domestic relationship” under Section 2(f) of the Act and judgment in Savitaben Somabhai Bhatiya v. State of Gujarat[5] and distinguished the said judgments as those cases related to live-in relationship without marriage.

The Court analyzing the earlier judgments opined that the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite conditions for a valid marriage. The said judgments were distinguished on facts as those cases related to live-in relationship without marriage. The Court opined that the parties therein had got married and the decree of the civil court for divorce subsisted and that apart a suit to declare the said judgment and decree as a nullity was still pending consideration before the competent court. In that background, the Court ruled that:-

“In the facts and circumstances of the case, the submission made on behalf of Respondent 2 that the judgment and decree of a civil court granting divorce is null and void and they continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by Respondent 2 to declare the said judgment and decree dated 20-3-2008 is decided in her favour. In view thereof, the evidence adduced by her particularly the record of the telephone calls, photographs attending a wedding together and her signatures in school diary of the child cannot be taken into consideration so long as the judgment and decree of the civil court subsists. On a similar footing, the contention advanced by her counsel that even after the decree of divorce, they continued to live together as husband and wife and therefore the complaint under the 2005 Act is maintainable, is not worth acceptance at this stage.”

[Emphasis supplied]

16. It may be noted that a submission was advanced by the wife with regard to the applicability of Section 468 CrPC. While dealing with the submission on the issue of limitation, the Court opined:- “…… in view of the provisions of Section 468 CrPC, that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of CrPC applicable and stand fortified by the judgments of this Court in Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394, and NOIDA Entrepreneurs Assn. v. NOIDA, (2011) 6 SCC 508.”

17. As it appears, the High Court has referred to the same but the same has really not been adverted. In fact, it is not necessary to advert to the said aspect in the present case.

18. The core issue that is requisite to be addressed is whether the appellant has ceased to be an “aggrieved person” because of the decree of judicial separation. Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation. A three-Judge Bench in Jeet Singh and Others Vs. State of U.P. and Others[6] though in a different context, adverted to the concept of judicial separation and ruled that the judicial separation creates rights and obligations. A decree or an order for judicial separation permits the parties to live apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended. The decree however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime.

19. In this regard, we may fruitfully refer to the authority in Hirachand Srinivas Managaonkar v. Sunanda[7] wherein the issue that arose for determination was whether the husband who had filed a petition seeking dissolution of the marriage by a decree of divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 can be declined relief on the ground that he had failed to pay maintenance for his wife and daughter despite an order of the court. The husband was appellant before this Court and had filed an application under Section 10 of the Hindu Marriage Act, 1955 for seeking judicial separation on the ground of adultery on the part of the appellant.

Thereafter, the appellant presented the petition for dissolution of marriage by decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation. The stand of the wife was that the appellant having failed to pay the maintenance as ordered by the court, the petition for divorce filed by the husband was liable to be rejected inasmuch he was trying to get advantage of his own wrong for getting the relief. The High Court accepted the plea of the wife and refused to grant the prayer of the appellant seeking divorce.

It was contended before this Court that the only condition for getting divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 is that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards after the passing of the decree for judicial separation in a proceeding to which both the spouses are parties. It was urged that if the said condition is satisfied the court is required to pass a decree of divorce. On behalf of the wife, the said submissions were resisted on the score that the husband had been living in continuous adultery even after passing of the decree of judicial separation and had reasonably failed to maintain the wife and daughter.

The Court proceeded to analyse Section 13(1- A)(i) of the Hindu Marriage Act, 1955. Analysing the provisions at length and speaking about judicial separation, it expressed that after the decree for judicial separation was passed on the petition filed by the wife it was the duty of both the spouses to do their part for cohabitation. The husband was expected to act as a dutiful husband towards the wife and the wife was to act as a devoted wife towards the husband. If this concept of both the spouses making sincere contribution for the purpose of successful cohabitation after a judicial separation is ordered then it can reasonably be said that in the facts and circumstances of the case the husband in refusing to pay maintenance to the wife failed to act as a husband. Thereby he committed a “wrong” within the meaning of Section 23 of the Act. Therefore, the High Court was justified in declining to allow the prayer of the husband for dissolution of the marriage by divorce under Section 13(1- A) of the Act.

20. And, the Court further stated thus:- “… The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted therefor. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and readjustment. The decree may fall by a conciliation of the parties in which case the rights of the respective parties which float from the marriage and were suspended are restored. Therefore the impression that Section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. At the cost of repetition it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship.”

21. It is interesting to note that an issue arose whether matrimonial offence of adultery had exhausted itself when the decree for judicial separation was granted and, therefore, it cannot be said that it is a new fact or circumstance amounting to wrong which will stand as an obstacle in the way of the husband to obtain the relief which he claims in the divorce proceedings. Be it stated that reliance was placed on the decision of Gujarat High Court in Bai Mani v. Jayantilal Dahyabhai[8]. This Court did not accept the contention by holding that living in adultery on the part of the husband is a continuing matrimonial offence, and it does not get frozen or wiped out merely on passing of a decree for judicial separation which merely suspends certain duties and obligations of the spouses in connection with their marriage and does not snap the matrimonial tie. The Court ruled that the decision of the Gujarat High Court does not lay down the correct position of law. The Court approved the principle stated by the Madras High Court in the case of Soundarammal v. Sundara Mahalinga Nadar[9] in which a Single Judge had taken the view that the husband who continued to live in adultery even after decree at the instance of the wife could not succeed in a petition seeking decree for divorce and that Section 23(1)(a) barred the relief.

22. In view of the aforesaid pronouncement, it is quite clear that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. Thus understood, the finding recorded by the courts below which have been concurred by the High Court that the parties having been judicial separated, the appellant wife has ceased to be an “aggrieved person” is wholly unsustainable.

23. The next issue that arises for consideration is the issue of limitation. In the application preferred by the wife, she was claiming to get back her stridhan. Stridhan has been described as saudayika by Sir Gooroodas Banerjee in “Hindu Law of Marriage and Stridhan” which is as follows:- “First, take the case of property obtained by gift. Gifts of affectionate kindred, which are known by the name of saudayika stridhan, constitute a woman’s absolute property, which she has at all times independent power to alienate, and over which her husband has only a qualified right, namely, the right of use in times of distress.”

24. The said passage, be it noted, has been quoted Pratibha Rani v. Suraj Kumar and Another[10]. In the said case, the majority referred to the stridhan as described in “Hindu Law” by N.R. Raghavachariar and Maine’s “Treatise on Hindu Law”. The Court after analyzing the classical texts opined that:- “It is, therefore, manifest that the position of stridhan of a Hindu married woman’s property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes – she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine, illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. It may be further noted that this right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt.”

25. In the said case, the Court ruled:- “… a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with losses of business by using the said property which was never intended by her while entrusting possession of stridhan. On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on behalf of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under Section 406 of the IPC. On a parity of reasoning, it is manifest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property.”

26. The decision rendered in the said case was referred for a fresh look by a three-Judge Bench. The three-Judge Bench Rashmi Kumar (Smt) v. Mahesh Kumar Bhada[11] while considering the issue in the said case, ruled that :-

“9. A woman’s power of disposal, independent of her husband’s control, is not confined to saudayika but extends to other properties as well. Devala says: “A woman’s maintenance (vritti), ornaments, perquisites (sulka), gains (labha), are her stridhana. She herself has the exclusive right to enjoy it. Her husband has no right to use it except in distress….” In N.R. Raghavachariar’s Hindu Law – Principles and Precedents, (8th Edn.) edited by Prof. S. Venkataraman, one of the renowned Professors of Hindu Law para 468 deals with “Definition of Stridhana”. In para 469 dealing with “Sources of acquisition” it is stated that the sources of acquisition of property in a woman’s possession are: gifts before marriage, wedding gifts, gifts subsequent to marriage etc. Para 470 deals with “Gifts to a maiden”.

Para 471 deals with

“Wedding gifts” and it is stated therein that properties gifted at the time of marriage to the bride, whether by relations or strangers, either Adhiyagni or Adhyavahanika, are the bride’s stridhana. In para 481 at page 426, it is stated that ornaments presented to the bride by her husband or father constitute her Stridhana property. In para 487 dealing with “powers during coverture” it is stated that saudayika meaning the gift of affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure.

10. It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof.”

27. After so stating the Court proceeded to rule that stridhana property is the exclusive property of the wife on proof that she entrusted the property or dominion over the stridhana property to her husband or any other member of the family, there is no need to establish any further special agreement to establish that the property was given to the husband or other member of the family. Further, the Court observed that it is always a question of fact in each case as to how the property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. Thereafter, the Court adverted to the concept of entrustment and eventually concurred with the view in the case of Pratibha Rani (supra). It is necessary to note here that the question had arisen whether it is a continuing offence and limitation could begin to run everyday lost its relevance in the said case, for the Court on scrutiny came to hold that the complaint preferred by the complainant for the commission of the criminal breach of trust under Section 406 of the Indian Penal Code was within limitation.

28. Having appreciated the concept of Stridhan, we shall now proceed to deal with the meaning of “continuing cause of action”. In Raja Bhadur Singh v. Provident Fund Inspector and Others[12] the Court while dealing with the continuous offence opined that the expression “continuing offence” is not defined in the Code but that is because the expressions which do not have a fixed connotation or a static import are difficult to define. The Court referred to the earlier decision in State of Bihar v. Deokaran Nenshi[13] and reproduced a passage from the same which is to the following effect:-

“A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.”

29. The Court further observed :- “This passage shows that apart from saying that a continuing offence is one which continues and a non-continuing offence is one which is committed once and for all, the Court found it difficult to explain as to when an offence can be described as a continuing offence. Seeing that difficulty, the Court observed that a few illustrative cases would help to bring out the distinction between a continuing offence and a non-continuing offence. The illustrative cases referred to by the Court are three from England, two from Bombay and one from Bihar.”

30. Thereafter, the Court referred to the authorities and adverted to Deokaran Nenshi (supra) and eventually held:- “The question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence…”

31. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act.

“Economic abuse” as it has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal (supra) that Section 498 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act.

We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. In the present case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010.

In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for stridhan. Regard being had to the said concept of “continuing offence” and the demands made, we are disposed to think that the application was not barred by limitation and the courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation.

32. Consequently, the appeal is allowed and the orders passed by the High Court and the courts below are set aside. The matter is remitted to the learned Magistrate to proceed with the application under Section 12 of the 2005 Act on merits.

 [Dipak Misra]

 [Prafulla C. Pant]

New Delhi

November 20, 2015

[1] (2011) 12 SCC 588

[2] (2012) 3 SCC 183

[3] (2014) 3 SCC 712

[4] (2010) 10 SCC 469

[5] (2005) 3 SCC 636

[6] (1993) 1 SCC 325

[7] (2001) 4 SCC 125

[8] AIR 1979 Guj 209

[9] AIR 1980 Mad 294

[10] (1985) 2 SCC 370

[11] (1997) 2 SCC 397

[12] (1984) 4 SCC 222

[13] (1972) 2 SCC 890

The Board Of Trustees For The Port vs N/S – Costal Roadways Ltd [Calcutta HC 2015 August]

KEYWORDS: Article 227 of the Constitution- supervisory jurisdiction- Limitation-
KHC
  • It is well established that it is only when an order of an inferior forum is violative of the fundamental basic principles of justice and fair play or where a flagrant error in procedure or law has crept in or where the order passed results in manifest injustice that a court can justifiably intervene under Article 227 of the Constitution.
  • our court have held that the provisions of the Limitation Act apply to proceedings under the Public Premises Act before the Estate Officer.
DATED : 19 August, 2015
                     In The High Court At Calcutta
                       Civil Revisional Jurisdiction
                              Appellate Side

                             CO 1063 of 2008

             The Board of Trustees for the Port of Kolkata
                                -vs.-
                    N/S - Costal Roadways Ltd.

Coram                  : The Hon'ble Justice Arijit Banerjee

For the Petitioner        : Mr. Joydip Kar, Sr. Adv.
                           Mr. Somnath Bose, Adv.
                           Ms. C. Ghose, Adv.

For the opposite party    : Mr. Jishnu Chowdhury, Adv.
                           Mr. Noelle Banerjee, Adv.
                           Mr. Dipak De,

Judgment On : 19/08/2015

Arijit Banerjee, J.:

(1) In the instant revisional application the petitioner challenges the judgment and order dated 9th October, 2007 and order dated 18th January, 2008 passed by the Ld. District Judge, Purba Medinipur in Misc. Appeal No. 42 of 2006 whereby the order dated 28th June, 2006 in E.O/Costal/261/1585 passed by the Ld. Estate Officer, Haldia Dock Complex was set aside and the matter was sent back to the Estate Officer on remand for fresh consideration. By the order dated 28th June, 2006 passed under sub sections (1), (2) and (2A) of Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as ‘the said Act’), the Estate Officer had directed the opposite party No. 1 herein to pay a sum of Rs. 39,08,045/- as damages on account of unauthorised occupation of the concerned premises. The opposite party no. 1 was further directed to pay simple interest at the rate of 7.25 per cent per annum on the said sum with effect from 12th July, 2006 till payment. This order was set aside in appeal by the Ld. District Judge and the matter was remanded back to the Estate Officer. The material facts of the case are as follows. (2) By a letter dated 28th November, 1981 the petitioner offered to grant a lease to the OP No. 1 in respect of two acres of undeveloped land in the industrial zone Haldia on the terms and conditions mentioned in the said letter. Clause VII of the said letter provided that the OP No. 1 would have to erect boundary pillars demarcating the land at its cost immediately after possession of the land is made over to it. Clause X of the letter provided that the OP No. 1 would be required to submit necessary plans in quadruplicate of any structure which it proposed to erect with a site plan and no construction would be allowed until the plans were approved by the office of the petitioner and sanctioned by the Municipal Authorities. Clause XI of the letter provided that the OP No. 1 would utilise the land within three months from the date of handing over possession of the land to the OP No. 1.

(3) By a letter dated 19th August, 1982 the petitioner informed the OP No. 1 that the land in question would be handed over to the authorised representative of the OP No. 1 on 30th August, 1982. It appears from a certificate of possession dated 1st September, 1982 that possession of the land in question was handed over to the OP No. 1 on 1st September, 1982.

(4) Between September 1982 and June 1985 rent was duly paid by the OP No. 1 to the petitioner. From July 1985 the OP No. 1 stopped paying rent.

(5) By a letter dated 27th March, 1986 written to the petitioner, the OP No. 1 complained that in spite of several reminders the proposed lease had still not been executed in the name of the OP No. 1. It was further complained that possession had been given to the OP No. 1 only on paper but there was no approach road to the said land thereby making it impossible for the OP No. 1 to start any work on the said land.

(6) By a notice dated 29th October, 1991 the petitioner terminated the said lease with effect from 30th April, 1992 i.e. after expiry of six months from the date of notice on the ground of default in payment of rent since July, 1985 and non-utilization of the land for the purpose for which the same had been leased out to the OP No. 1 within the specified period of three months from the date of the lease. The petitioner called upon the OP No. 1 to quit, vacate and deliver vacant possession of the said land to the petitioner on 2nd May, 1992.

(7) Upon the failure of the OP No. 1 to deliver back possession of the land to the petitioner, the Estate Officer, Haldia Dock Complex issued a notice dated 28th April, 1993 under Section 4 (1) and Section 4 (2)(b)(ii) of the said Act calling upon the OP No. 1 to show cause as to why an order of eviction of the OP No. 1 from the said land should not be made.

(8) The OP No. 1 filed its reply to the show cause notice on 11th October 1993. In the said reply, it was admitted that the approach road to the said land was constructed in 1990. (9) By an order dated 8th May, 2003, the Estate Officer directed eviction of the OP No. 1 from the land in question. Possession of the land was delivered by the OP No. 1 to the petitioner on 30th May, 2003.

(10) On 20th June, 2003 the Estate Officer issued a notice under Section 7 (3) of the said Act claiming damages amounting to Rs. 39.08.045/- for the period 2nd May, 1992 to 30th May, 2003 on account of unauthorised use and occupation of the land in question.

(11) After hearing the parties, by an order dated 28th June, 2006 the Estate Officer directed the OP No. 1 to pay the sum of Rs. 39,08,045/- as damages on account of unauthorised occupation of the premises in question along with simple interest thereon at the rate of 7.25 per cent per annum with effect from 12th July, 2006 till final payment.

(12) The OP No. 1 preferred an appeal against the said order of the Estate Officer before the Ld. District Judge, Purba Medinipur being Misc. Appeal No. 42 of 2006. By a judgment and order dated 9th October, 2007, the Ld. District Judge allowed the appeal, set aside the order of the Estate Officer and sent back the case on remand for fresh disposal. Being aggrieved by the judgment and order of the Ld. District Judge the petitioner is before this Court by way of the instant revisional application. (13) Appearing on behalf of the petitioner, Mr. Kar, Ld. Senior Counsel submitted that the Ld. District Judge could not have gone into the issue of physical possession of the land not being handed over to the OP No. 1. That issue attained finality by the eviction order passed by the Estate Officer. He further submitted that Clause 7 of the letter of allotment of land required the OP No. 1 to erect boundary pillars demarcating the land which did not require approval of any authority. However, the OP No. 1 failed to erect such boundary pillars.

(14) Mr. Kar then submitted that Section 2 (12) of the Code of Civil Procedure and the judgments in connection therewith are irrelevant. Section 2 (12) of the CPC defines mesne profits. However, the Estate Officer determined not mesne profits but damages for unauthorised occupation in accordance with Rule 8 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971. He submitted that there was no scope of interference with the order of the Estate Officer. The lease was never surrendered. Hence, the obligation on the part of the OP No. 1 to pay rent continue till 1st May, 1992.

(15) Mr. Kar relied on four decisions of the Hon’ble Supreme Court on the scope of Article 227of the Constitution of India. He first relied on the case of Trimbak Gangadhar Telang-vs.-Ramchandra Ganesh Bhide reported in AIR 1977 SC 1222. Relying on paragraph 3 of the said judgment he submitted that when the order of a Tribunal is violative of the basic fundamental principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, High Court can justifiably intervene under Article 227 of the Constitution.

(16) Mr. Kar then relied on the case of Surya Dev Rai-vs.-Ram Chander Rai reported in (2003) 6 SCC 675. In the said decision the Hon’ble Supreme Court observed that Article 227of the Constitution of India confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. It was further observed that in order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the Courts have devised self-imposed Rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. Supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate courts within bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has been caused thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, neither is available to correct mere errors of fact or of law unless the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice has occasioned thereby. (17) Mr. Kar then relied on a decision in the case of Jai Singh-vs.- Municipal Corporation of Delhi reported in (2010) 9 SCC 385. Mr. Kar relied on paragraph 15 of the said judgment which is set out hereinbelow:-

“15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well-recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a `bull in a china shop’, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.”

(18) Mr. Kar also relied on a case of Bandaru Satyanarayana-vs.- Imandi Anasuya reported in (2011) 12 SCC 650. At paragraphs 6, 8 to 10 of the said judgment the Hon’ble Supreme Court emphasised that the jurisdiction under Article 227 of the Constitution should be sparingly used by the High Court. The High Court cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases, where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. The High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals or subordinate courts or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. It is not appreciated as to why Mr. Kar relied on this decision as the same seems to restrict the scope of exercise of jurisdiction under Article 227 of the Constitution.

(19) Mr. Jishnu Chowdhury, Ld. Counsel appearing for the opposite party submitted that claim for arrear rent/damages made by the KPT is barred by limitation. Proceedings under Section 4 of the Public Premises Act were initiated on 28th April, 1993. The eviction order was passed on 8th May, 2003. Thereafter, proceedings under Section 7 (3) of the Public Premises Act were initiated on 20th June, 2003. The said proceedings were disposed of by an order of the Estate Officer dated 28th June, 2006. Mr. Jishnu Chowdhury submitted that the proceeding for recovery of arrear rent/damages having been initiated much beyond the period of three years from the date when the cause of action arose, the same is hopelessly barred by the laws of limitation. In this connection he relied on a decision of the Hon’ble Supreme Court of India in the case of New Delhi Municipal Committee-vs.- Kalu Ramreported in AIR 1976 SC 1637 wherein it was held that the laws of limitation apply to a claim on account of arrears of rent raised under Section 7 of the Public Premises Act. In paragraph 3 of the said judgement the Hon’ble Supreme Court observed, inter alia, as follows:-

“3. It is not questioned that a creditor whose suit is barred by limitation, if he has any other legal remedy permitting him to enforce his claim, would be free to avail of it. But the question in every such case is whether the particular statute permits such a course. Does Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 create a right to realise arrears of rent without any limitation of time? Under Section 7 the Estate Officer may order any person who is in arrears of rent ‘payable’ in respect of any public premises to pay the same within such time and in such instalments as he may specify in the order. Before however the order is made, a notice must issue calling upon the defaulter to show cause way such order should not he made and, if he raised any objection, the Estate Officer must consider the same and the evidence produced in support of it. Thus the Estate Officer has to determine upon hearing the objection the amount of rent in arrears which is ‘payable.’ The word ‘payable’ is somewhat indefinite in import and its meaning must be gathered from the context in which it occurs. ‘Payable’ generally means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law. Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise time-barred. Construing the expression “any money due” in Section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta and others v. Official Liquidators of the Dehradun Mussorie Electric Tramway Company Ltd.(1) that this meant moneys due and recoverable in suit by the company, and observed: “it is a section which creates a special procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new rights.” We are clear that the word “payable” in Section 7, in the context in which its occurs, means “legally recoverable.” Admittedly a suit to recover the arrears instituted on the day the order under Section 7 was made would have been barred by limitation. The amount in question was therefore irrecoverable. This being the position, the appeal fails and is dismissed with costs.”

(20) Mr. Chowdhury also relied on another decision of the Hon’ble Supreme Court in the case of Banalata & Company-vs.- LIC of India reported in AIR 2011 SC 3619 which followed the decision of the Hon’ble Supreme Court in the case of Kalu Ram (supra) in so far as applicability of the laws of limitation to proceedings under Section 7 of the Public Premises Act are concerned.

(21) Mr. Chowdhury then submitted that although the question of limitation was not raised before the Court below, the same can still be urged before this Court. He referred to Section 3of the Limitation Act which provides that even though the limitation is not set up as a defence to a claim, if the court finds that a claim is barred by limitation, the same must be rejected. He also relied on a judgment of the Hon’ble Supreme Court in the case of Manindra Land and Building Corporation Ltd.-vs.-Bhutnath Banerjee reported in AIR 1964 SC 1336 at paragraph 9 whereof the Hon’ble Supreme Court observed that Section 3 of the Limitation Act enjoins a court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefor by Schedule I irrespective of the fact whether the opponent had set up a plea of limitation or not. It is the duty of the court not to proceed with the application if it is made beyond the period of limitation prescribed. The court had no choice and if in construing the relevant provision of the Limitation Act or in determining which provision of the Limitation Act applies, the subordinate court comes to an erroneous decision, it is open to the court in revision to interfere with that conclusion. He also relied on a decision of the Madras High Court in the case of P.R. Seetharaman-vs.-Govt. of Tamil Nadu reported in AIR 1988 Madras 45 where also, the writ court allowed the petitioner to urge the point of limitation although the same was not argued before the lower forum, the order of which was impugned before the writ court.

(22) Mr. Chowdhury then submitted that this is not a fit case where the High Court should interfere in exercise of its jurisdiction under Article 227 of the Constitution of India since even if the Ld. District Judge’s order is erroneous, the order cannot be said to be without jurisdiction. The High Court does not exercise its revisional power under Article 227 to correct mere errors of fact or law. In this connection Mr. Chowdhury relied on a decision of the Hon’ble Supreme Court in the case of Ashok Kumar-vs.-Sita Ram reported in 2001 4 SCC 478 wherein at paragraph 17 of the judgment, the Hon’ble Supreme Court observed as follows:-

“17. The question that remains to be considered is whether the High Court in exercise of writ jurisdiction was justified in setting aside the order of the Appellate Authority. The order passed by the Appellate Authority did not suffer from any serious illegality, nor can it be said to have taken a view of the matter which no reasonable person was likely to take. In that view of the matter there was no justification for the High Court to interfere with the order in exercise of its writ jurisdiction. In a matter like the present case where orders passed by the Statutory Authority vested with power to act quasi-judicially is challenged before the High Court, the role of the Court is supervisory and corrective. In exercise of such jurisdiction the High Court is not expected to interfere with the final order passed by the Statutory Authority unless the order suffers from manifest error and if it is allowed to stand it would amount to perpetuation of grave injustice. The Court should bear in mind that it is not acting as yet another Appellate Court in the matter. We are constrained to observe that in the present case the High Court has failed to keep the salutary principles in mind while deciding the case.”

(23) Mr. Chowdhury also relied on another decision of the Hon’ble Supreme Court in the case of Securities and Exchange Board of India-vs.-Arihant Cotsyn Ltd. Reported in (2005) 13 SCC 498 wherein the Hon’ble Supreme Court accepted the submission that the revisional jurisdiction of the High Court can be exercised where the subordinate court is found to have acted without jurisdiction or in excess of jurisdiction and for the purpose of keeping the subordinate court within bounds when the subordinate court has assumed jurisdiction which it did not have or has failed to exercise jurisdiction which it did have. He then relied on a decision of the Hon’ble Supreme Court in the case of Shamshad Ahmed-vs.-Tilak Raj Bajaj reported in (2008) 9 SCC 1 wherein at paragraph 38 of the judgment it was observed that though the powers of a High Court under Articles 226 and 227 are very wide and extends over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor re-appreciate nor re- weigh the evidence upon which determination of a subordinate court or inferior tribunal is based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law. (24) He then referred to Rule 8 of the Public Premises (Eviction of Unauthorised Occupants) Rules which is set out hereunder:- “R. 8. Assessment of damages.- In assessing damages for unauthorised use and occupation of any public premises the estate officer shall take into consideration the following matters, namely:-

(a) The purpose and the period for which the public premises were in unauthorised occupation;

(b) The nature, size and standard of the accommodation available in such premises;

(c) The rent that would have been realised if the premises had been let on rent for the period of unauthorised occupation to a private person;

(d) Any damage done to the premises during the period of unauthorised occupation;

(e) Any matter relevant for the purpose of assessing the damages.”

The aforesaid Rule lays down the factors which are to be considered for assessment of damages. He submitted that mesne profits and damages are the same. In this connection he relied on a decision of the Hon’ble Supreme Court in the case of Lucy Kochuvareed-vs.-P. Mariappa Gounder reported in AIR 1979 SC 1214 wherein the Hon’ble Supreme Court observed that mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case, can be laid down and the court may mould it according to the justice of the case. He also relied on a decision of the Privy Council in the case of Girish Chunder Lahiri-vs.-Shoshi Shikhareswar Roy reported in 27 Indian Appeal 110 where at paragraph 23 of the judgment Privy Council observed that mesne profits are in the nature of damages which the court may mould according to the justice of the case. (25) Mr. Chowdhury then submitted that the opposite party is not liable to pay any damages because it could not utilize the land in question at all. This is because when the possession of the land was given to the opposite party on paper, there was no access of road to the land. In spite of repeated requests the KPT did not construct such approach road. Hence, the opposite party was prevented from using the land commercially or at all. He submitted that the principle of suspension of rent should apply since no effective possession of the land was given by the KPT to the opposite party. In support of this contention he relied on a decision of the Hon’ble Supreme Court in the case of Surendra Nath Bibra-vs.-Stephen Court Ltd. Reported in AIR 1966 SC 1361 wherein the Supreme Court applied the doctrine of suspension of rent and observed that it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. He also relied on a decision of this court in the case of P.K. Roy-vs.-Bimal Mukherjee reported in 80 CWN 939 wherein this court, following the decision of the Hon’ble Supreme Court in Surendra-vs.-Stephen Court Ltd. (Supra) held that in cases of eviction of the tenant from the demised property, the tenant will be entitled to suspension or partial abatement of rent. To constitute such eviction it is not necessary that there must be physical dispossession of the tenant from the property or any part thereof. Any act of interference with the tenant’s enjoyment or possession of the property or any part thereof by any deliberate tortious act of the landlord or his agent will constitute eviction for application of the doctrine of suspension of rent. (26) In reply, Mr. Kar, Ld. Senior Advocate submitted that the laws of limitation have no manner of application to the facts of the instant case. Only when a person is declared as an unauthorised occupant, the question of computation of damages would arise. The final order under Section 4 of the Public Premises Act was passed on 8th May, 2003 declaring the opposite party to be an unauthorised occupant. The notice under Section 7 of the Act was issued soon thereafter on 20th June, 2003. The process of adjudication was on and as such the issue of limitation would not arise. He submitted that the point of limitation was not raised before the Estate Officer or the Ld. District Judge and the same is an afterthought. He referred to Section 3 and Section 29 (2) of the Limitation Act and submitted that the Public Premises Act is a special law which does not provide for any period of limitation. Hence, the provisions of the Limitation Act cannot be imported to a proceeding under the Public Premises Act.

(27) Mr. Kar referred to a decision of the Hon’ble Supreme Court in the case of Consolidated Engineering Enterprises-vs.-Principal Secretary, Irrigation Department reported in (2008) 7 SCC 169 wherein the Hon’ble Supreme Court observed that where the Schedule to the Limitation Act prescribes a period of limitation for appeals or applications to any court, and a special or local law provides for filing of appeals and applications to the court but does not prescribe any period of limitation in regard to such appeals or applications, the period of limitation prescribed in the Schedule to the Limitation Act will apply to such appeals and applications and consequently the provisions of Sections 4 to 24 of the Act will also apply. Where the special law or local law prescribes for any appeal or application, a period of limitation different from the period prescribed by the Schedule to the Limitation Act, then the provisions of Section 29 (2) of the Act will be attracted. In that event, the provisions of Section 3 of the Limitation Act will apply, as if the period of limitation prescribed under the special law was the period prescribed by the Schedule to the Limitation Act and for the purpose of determining any period of limitation prescribed for the appeal or application by the special law, the provisions contained in Sections 4 to 24 of the Limitation Act will apply to the extent to which they are not expressly excluded by such special law. The Apex Court also observed that the purpose of Section 43 of the Arbitration and Conciliation Act, 1996 is not to make the Limitation Act inapplicable to proceedings before the Court but on the other hand make the Limitation Act applicable to arbitrations. Section 43 of the Arbitration and Conciliation Act apart from making the provisions of the Limitation Act applicable to arbitrations, reiterates that the Limitation Act applies to proceedings in court in connection with arbitration. Relying on this case Mr. Kar submitted that there is no provision in the Public Premises Act similar to Section 43 of the Arbitration and Conciliation Act. Hence the Limitation Act will not apply to proceedings before the Estate Officer which is a quasi judicial authority/tribunal. (28) He then submitted that under Section 9 of the Public Premises Act, the District Judge while hearing an appeal acts as an Appellate Officer and not as a judicial authority. Hence, the Limitation Act will not apply to proceedings in appeal before the District Judge. He referred to a decision of the Madhya Pradesh High Court in the case of L. S. Nair-vs.-Hindustan Steel Ltd. reported in AIR 1980 MP 106 wherein at paragraph 10 of the judgment the High Court held that the Limitation Act has no application to proceedings before the Estate Officer and as the jurisdiction of Civil Court is entirely barred in matters governed by the Public Premises Act, it is difficult to accept the argument that there is any period of limitation for recovery of damages. The High Court distinguished the decision of the Punjab High Court in the case of Kalu Ram-vs.-New Delhi Municipal Committee reported in (1965) 67 Punjab Law Reporter 1190, which held to the contrary. (29) Dealing with the Hon’ble Supreme Court’s decision in the case of Delhi Municipal Committee-vs.-Kalu Ram(supra) Mr. Kar submitted that in that case the Supreme Court was dealing with the provisions of Public Premises Act, 1958. However, Section 15 of the Public Premises Act 1971 was amended in 1980 and the jurisdiction of the Civil Court was completely barred in respect of matters falling within the purview of the Public Premises Act. (30) Mr. Kar then submitted that if there is a serious error of law or the findings recorded suffer from error apparent on record, the High Court can quash the order of a Lower Court. The revisional application may also be exercised where the tribunal or the lower court has done something which it had no lawful authority to do or where it has abused or misused the authority which it had. Similarly, where the inferior forum departs from the procedures which either by statute or at common law ought to have been observed as a matter of fairness or where the decision is found to be perverse, jurisdiction Under Article 227 of the Constitution of India should be exercised by the High Court. In this connection he placed reliance on a decision of the Hon’ble Supreme Court in the case of Iswarlal Mohanlal Thakkar-vs.-Paschim Gujarat VIJ Company Ltd. Reported in (2014) 6 SCC 434.

(31) In his rejoinder to Mr. Kar’s reply, Mr. Chowdhury submitted that the Madhya Pradesh High Court in the case of L.S Nair-vs.- Hindustan Steel Ltd. (supra) did not consider the Supreme Court judgment in the case of Kalu Ram (Supra). As such the said judgment is per incuriam. He referred to a decision of the Madhya Pradesh High Court in the case of Lakhanlal Rawat-vs.- Union of India reported in 2010 (2) MPLJ 426 wherein the High Court referred to and relied upon the Supreme Court’s decision in the case of Kalu Ram (supra) and differed from the view taken by the Division Bench of the Madhya Pradesh High Court in the case of L.S Nair-vs.-Hindustan Steel Ltd. (Supra). The Court held that the Limitation Act applies to proceedings under the Public Premises Act. Mr. Chowdhury also relied on a decision of this Court in the case of M/s. Automobile Association of Eastern India-vs.-The Board of Trustees of the Port of Kolkata reported in (2010) 4 CLT 591 where this court differed from the view of the Division Bench of the Madhya Pradesh High Court and following the Supreme Court decision in the case of Kalu Ram (Supra) held that the provisions ofLimitation Act apply to proceedings under the Public Premises Act. Similarly, the Delhi High Court in the case of Shri G. R. Gupta- vs.-Lok Sabha Secretariat reported in 204 (2013) DLT 694 held that in view of the pronouncement of the Supreme Court in the case of Kalu Ram (Supra) it cannot be said that the provisions of the Limitation Act have no application to recovery of damages under Section 7 of the Public Premises Act, 1971.

(32) I have considered the rival contentions of the parties. (33) Although I have recorded in detail the arguments advanced by both the Ld. Counsels since according to me it would have been unfair and improper not to do so, it is not necessary for me to judge the correctness or otherwise of all the rival contentions, except to the extent indicated herein. The order under challenge before this Court is an order of remand. The Ld. District Judge hearing the appeal from the order of the Estate Officer was of the view that the Estate Officer failed to consider and or apply his mind to certain very important issues and most importantly the issue of whether possession of the land in question was in fact handed over to the opposite parties. The question is whether or not this court in the exercise of revisional jurisdiction under Article 227 of the Constitution of India will interfere with such order of remand.

(34) It is well established that it is only when an order of an inferior forum is violative of the fundamental basic principles of justice and fair play or where a flagrant error in procedure or law has crept in or where the order passed results in manifest injustice that a court can justifiably intervene under Article 227 of the Constitution. In Achutananda Baidya-vs.-Prafulla Gayen reported in (1997) 5 SCC 1976, the Supreme Court observed that the power and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to the High Court, have done what they were required to do. The High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption of or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure arriving at a finding which is perverse or based on no material or results in manifest injustice. As regards the finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse. (35) In the case of Khimji Vidhu-vs.-Premier High School reported in AIR 2000 SC 3495 the Hon’ble Supreme Court emphasised that jurisdiction under Article 227 of the Constitution of India must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the exclusive domain of an appellate court. (36) In the case of Estralla Rubber-vs.-Dass Estate (P) Ltd. Reported in (2001) 8 SCC 1997 the Hon’ble Supreme Court observed that the exercise of power under Article 227 involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and to interfere with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice will remain uncorrected. While acting under Article 227, the High Court cannot exercise its power as an Appellate Court or substitute its own judgment in place of that of the subordinate court or to correct an error which is not apparent on the face of the record. (37) In the case of Ouseph Mathui-vs.-Md. Abdul Khadir reported in (2002) 1 SCC 319, the Hon’ble Supreme Court observed that the powers conferred upon the High Court under Articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from the ordinary statutory powers. No doubt Article 227 confers a right of superintendence over all courts and tribunals throughout territories in relation to which the High Court exercises its jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said Article as a matter of right. Merely wrong decisions may not be a ground for the exercise of jurisdiction under Article 227 unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate court resulting in grave injustice to any party. (38) I should keep in mind the aforesaid legal principles while disposing of the present revisional application. In my view, it cannot be said that the judgment and order of the Ld. District Judge is without jurisdiction or is perverse or has caused manifest injustice to the petitioner. While I agree with the conclusion of the Ld. District Judge that the matter should be sent back on remand to the Estate Officer, I cannot agree with the reasoning of the Ld. District Judge. The Ld. District Judge has remanded back the matter to the Estate Officer primarily on the ground that the Estate Officer has not considered sufficiently or at all the question of whether or not possession of the land in question was in fact delivered to the opposite party by the petitioner and whether or not the opposite party was deprived of the user of the land due to any fault of the petitioner. However, while disposing of the eviction proceeding under Section 4 of the Public Premises Act the Estate Officer came to a finding that the land in question was duly handed over by the petitioner to the opposite party. The eviction order has not been appealed against and the aforesaid finding of the Estate Officer remains unchallenged and according to me has attained finality as between the parties. Hence, in my view, while considering the claim of the petitioner for damages afresh on remand, there is no scope for the Estate Officer to reopen the said issue.

(39) It is well settled that in exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned order but it may also make such directions as the facts and circumstances of the case may warrant by way of guiding the inferior court or tribunal as to the manner in which it should proceed afresh. I am of the view that a very important question that the Estate Officer did not address is the question of limitation of the petitioner’s claim for damages. The Hon’ble Supreme Court has held in the case of New Delhi Municipal Committee-vs.-Kalu Ram (supra) that the provisions of Limitation Act apply to proceedings under Public Premises Act for recovery of damages. Under Article 141 of the Constitution of India, such declaration of the Supreme Court is the law of the land and binding on all courts and tribunals. As noted above, the Delhi High Court, the Madhya Pradesh High Court and also our court have held that the provisions of the Limitation Act apply to proceedings under the Public Premises Act before the Estate Officer. The Division Bench of the Madhya Pradesh High Court which took a different view in the case of L.S. Nair-vs.-Hindustan Steel Ltd. (supra) did not consider the Supreme Court decision in New Delhi Municipal Committee-vs.-Kalu Ram (Supra) and as such is per incuriam. Even if the plea of limitation was not set up by the opposite party before the Estate Officer, it was the duty of the Estate Officer to go into that question.

(40) In view of the aforesaid I uphold the judgment and order impugned herein with the modification indicated above. The Estate Officer shall consider the claim of the petitioner for damages afresh including the question as to whether or not such claim or part thereof is barred by limitation. However, the Estate Officer shall not reopen the issue of possession as the same has attained finality as between the parties as indicated above. The Estate Officer shall dispose of the matter on remand within a period of six months from the date of communication of this order. (41) With the aforesaid directions the revisional application stands disposed of, without any order as to costs.

(Arijit Banerjee, J.)

What is the period of limitation prescribed for recovery of arrears of house tax due to the Municipal corporation

Meal

  1. FactsVide letter dated February 14, 1968, the Assistant Assessor and Collector (Recovery Cell) of the Municipal Corporation of Delhi had required the appellant to pay a sum of Rs. 19,558.75 as arrears of house tax due in respect of property No. 3432-35/III, Ganda Nala, Mori Gate, Delhi, calculated up to the period ending March 31, 1967. It was mentioned in the said notice that in case the arrears of house tax are not paid on or before February 22, 1968, the same shall be recovered by the execution of distress warrant along with 20% penalty. This demand was challenged by the appellant by filing a civil suit on February 21, 1968, seeking perpetual injunction against the respondent-Corporation. The appellant challenged the said demand on the ground that this particular property was an evacuee property earlier and had vested in the Custodian and the appellant became the owner of the said property with effect from September 29, 1966, when a sale deed was executed and registered in his favor by the Government and thus he was not liable for payment of house tax for the period prior to his becoming owner of the property and, secondly, that in any case the demand raised by the Municipal Corporation of Delhi was barred by limitation and thus the appellant was not liable to pay arrears of house tax beyond the period of three years. [ Delhi High Court -Lakhmi Chand vs Municipal Corporation Of Delhi on 7 December, 1987
    Equivalent citations: AIR 1988 Delhi 220, 1988 (14) DRJ 258, 1988 173 ITR 202 Delhi, 1988 RLR 117]
  2. FACTS: Respondent Kalu Ram was a pavement vendor in Connaught Place, New Delhi. In 1950 the appellant, New Delhi Municipal Committee, provided a number of displaced persons with small prefabricated stalls to enable them to do their business. Kalu Ram who was also a displaced person was allotted one such stall on Irwin Road. Rupees thirty was the licence fee payable per month by the allottees of these stalls. Later, the allottees, including the respondent, applied to the Rent Controller for reducing the rent. It is not necessary to refer to the various proceedings arising from these applications for fixation of standard rent which were ultimately dismissed by the Circuit Bench of the Punjab High Court at Delhi as not maintainable. In the meantime many of the allottees fell in arrears in paying the licence fees. So far as the respondent is concerned, the appellant took no steps to recover the dues till December 1960 when it demanded the entire amount in arrears from May 1950 to April 1957. The respondent not having paid, the appellant asked the Estate Officer, appointed under Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 to take steps to recover the amount in arrears under Section 7 of that Act. The Estate Officer, who is the second respondent herein, made an order on September 28, 1961 under Section 7 (1) of the Act asking the respondent to pay the sum overruling his objection that the claim was barred by limitation. The respondent’s appeal to the Additional District Judge from the Estate Officer’s order was disallowed. The respondent then filed a writ petition before the Circuit Bench of the Punjab High Court at Delhi challenging the order against him. One of the grounds of challenge was that Section 7 could not be resorted to for recovery of the sum as the claim was time barred. The High Court accepted the contention and allowed the petition.[ Supreme Court of India-New Delhi Municipal Committee vs Kalu Ram & Anr on 20 April, 1976
    Equivalent citations: 1976 AIR 1637, 1976 SCR 87]  Calcutta High Court ruled that the law of limitation applies before Govt Bodies  relying in the Kaluram`s case(supra) .

New Delhi Municipal Committee vs Kalu Ram & Anr [SC 1976 April ]

KEYWORDS: ARREAR OF RENT TO GOVERNMENT- LIMITATION -Municipal-

Capture

Decided on : 20-04-1976-

If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law.

AIR 1976 SC 1637 : (1976) Suppl. SCR 87 : (1976) 3 SCC 407

(SUPREME COURT OF INDIA)

New-Delhi Municipal Committee Appellant
Versus
Kalu Ram and another Respondent

(Before : A. C. Gupta And Jaswant Singh, JJ.)

Civil Appeal No. 988 of 1968,

Public Premises (Eviction of Unauthorised Occupants) Act, 1958—Section 7—Arrears of rent which have become time-barred cannot be realised by Revenue Recovery—”Payable”, meaning of.

Counsel for the Parties:

Mr. Hardyal Hardy, Sr. Advocate, (M/s. B. P. Maheshwari, Mr. Suresh Sethi, Bikaramjit Nayar, Advocates with him), for Appellant

Mr. A. K. Sen, Sr. Advocate, (Mr. D. P. Bhandare, Mrs. Laxmi Arvind Mathur, and Mr. S. S. Khanduja, Advocates with him), for Respondents.

Judgement

Gupta, J—Respondent Kalu Ram was a pavement vendor in Connaught Place, New Delhi. In 1950 the appellant, New Delhi Municipal Committee, provided a number of displaced persons with small prefabricated stalls to enable them to do their business. Kalu Ram who was also a displaced person was allotted one such stall on Irwin Road. Rupees thirty was the licence fee payable per month by the allottees of these stalls. Later, the allottees, including the respondent, applied to the Rent Controller for reducing the rent. It is not necessary to refer to the various proceedings arising from these applications for fixation of standard rent which were ultimately dismissed by the Circuit Bench of the Punjab High Court at Delhi as not maintainable. In the meantime many of the allottees fell in arrears in paying the licence fees. So far as the respondent is concerned, the appellant took no steps to recover the dues till December 1960 when it demanded the entire amount in arrears from May 1950 to April 1957. The respondent not having paid, the appellant asked the Estate Officer, appointed under Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 to take steps to recover the amount in arrears under Section 7 of that Act. The Estate Officer, who is the second respondent herein, made an order on September 28, 1961 under Section 7 (1) of the Act asking the respondent to pay the sum overruling his objection that the claim was barred by limitation. The respondent’s appeal to the Additional District Judge from the Estate Officer’s order was disallowed. The respondent then filed a writ petition before the Circuit Bench of the Punjab High Court at Delhi challenging the order against him. One of the grounds of challenge was that Section 7 could not be resorted to for recovery of the sum as the claim was time barred. The High Court accepted the contention and allowed the petition. In this appeal by certificate, the appellant, New Delhi Municipal Committee, questions the correctness of the High Court’s decision.

2. The only contention raised before us by Mr. Hardy appearing for the appellant is that the High Court was wrong in holding that the amount in question could not be recovered under Section 7 because the time for instituting a suit to recover the sum had expired. Admittedly, any suit instituted on the date when the Estate Officer made his order under Section 7 (1) would have been barred by time. Mr. Hardy argued that the Limitation Act only barred the remedy by way of suit and did not extinguish the right, and Sec. 7 of the Public Premises (Eviction of Unauthorised Occupants) Act providing a different and special mode of recovery was therefore available to recover rent in arrears beyond three years. Section 7 as it stood at the relevant time reads:

“7. Power to recover rent or damages in respect of public premises as arrears of land revenue. (1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such installments as may be specified in the order.

(2) Where any person is, or has at any time been in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may be order, require that person to pay the damages within such time and in such installments as may be specified in the order:

Provided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.

(3) If any person refuses or fails to pay the arrears of rent or any installments thereof payable under sub-section (1) or the damages or any installment thereof payable under sub-section (2) within the time specified in the order relating thereto the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrears of land revenue.”

As would appear from the terms of the section, it provides a summary procedure for the recovery of arrears of rent. It was argued that since Section 7 did not put a time limit for taking steps under that section and as the limitation prescribed for a suit to recover the amount did not apply to a proceeding under this section, the High Court was in error in upholding the respondent’s objection. In support of his contention that a debt remained due though barred by limitation, Mr. Hardy relied on a number of authorities, both Indian and English. We do not consider it necessary to refer to these decisions because the proposition is not disputed that the statute of limitation bars the remedy without touching the right. Sec. 28 of the Indian Limitation Act, 1908 which was in force at the relevant time however provided that the right to any property was extinguished on the expiry of the period prescribed by the Act for instituting a suit for possession of the property. But on the facts of this case no question of a suit for possession of any property arises and Section 28 has no application. It is not questioned that a creditor whose suit is barred by limitation, if he has any other legal remedy permitting him to enforce his claim, would be free to avail of it. But the question in every such case is whether the particular statute permits such a course. Does Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 create a right to realise arrears of rent without any limitation of time? Under Section 7 of the Estate Officer may order any person who is in arrears of rent ‘payable’ in respect of any public premises to pay the same within such time and in such installments as he may specify in the order. Before however the order is made, a notice must issue calling upon the defaulter to show cause why such order should not be made and, if he raised any objection, the Estate Officer must consider the same and the evidence produced in support of it. Thus the Estate Officer has to determine upon hearing the objection the amount of rent in arrears which is ‘payable’. The word ‘payable’ is somewhat indefinite in import and its meaning must be gathered from the context in which it occurs. ‘Payable’ generally means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law. Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise time-barred. Construing the expression “any money due” in Section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta v. Official Liquidators of the Dehradun-Mussoorie Electric Tramway Co. Ltd., 60 Ind App 13 that this meant moneys due and recoverable in a suit by the company, and observed:

“It is a section which creates a special procedure for obtaining payment of moneys: it is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new rights.” We are clear that the word “payable” in Section 7, in the context in which it occurs, means “legally recoverable”.

Admittedly a suit to recover the arrears instituted, on the day the order under Section 7 was made would have been barred by limitation. The amount in question was therefore irrecoverable. This being the position, the appeal fails and is dismissed with costs.

Lakhmi Chand vs Municipal Corporation Of Delhi [ Delhi HC 1987 December]

KEYWORDS: what is the period of limitation prescribed for recovery of arrears of house tax-distress warrant-
delhi high court
Article 62 Of the new Limitation Act is applicable to the demand in question and thus the same was not barred by limitation when it was made.
DATED :  7 December, 1987
ACTS:-  article 62 AND 113 of the Limitation Act, 1963-Section 123 of the Delhi Municipal Corporation Act, 1957
Equivalent citations: AIR 1988 Delhi 220, 1988 (14) DRJ 258, 1988 173 ITR 202 Delhi, 1988 RLR 117
Bench: P Bahri

 

Delhi High Court

Lakhmi Chand vs Municipal Corporation Of Delhi

JUDGMENT

P.K. Bahri, J.

1. The only question which arises in this second appeal against the judgment and decree dated September 13, 1972, of Shri H. K. S. Malik, Senior Sub-judge, is as to what is the period of limitation prescribed for recovery of arrears of house tax due to the Municipal corporation of Delhi ?

2. Vide letter dated February 14, 1968, the Assistant Assessor and Collector (Recovery Cell) of the Municipal Corporation of Delhi had required the appellant to pay a sum of Rs. 19,558.75 as arrears of house tax due in respect of property No. 3432-35/III, Ganda Nala, Mori Gate, Delhi, calculated up to the period ending March 31, 1967. It was mentioned in the said notice that in case the arrears of house tax are not paid on or before February 22, 1968, the same shall be recovered by the execution of distress warrant along with 20% penalty. This demand was challenged by the appellant by filing a civil suit on February 21, 1968, seeking perpetual injunction against the respondent-Corporation. The appellant challenged the said demand on the ground that this particular property was an evacuee property earlier and had vested in the Custodian and the appellant became the owner of the said property with effect from September 29, 1966, when a sale deed was executed and registered in his favor by the Government and thus he was not liable for payment of house tax for the period prior to his becoming owner of the property and, secondly, that in any case the demand raised by the Municipal Corporation of Delhi was barred by limitation and thus the appellant was not liable to pay arrears of house tax beyond the period of three years.

3. The Municipal Corporation of Delhi contested the suit besides taking certain preliminary objections regarding maintainability of the suit on account of the provisions of sections 477 and 478 of the Act. The plea was taken that the demand raised by the Corporation was legal and the arrears of house tax claimed in the said demand were not barred by limitation and the recovery could be effected from the appellant who is the owner of the property and the house tax is the first charge on the property in question. In the replication, the appellant reiterated his pleas and the following issues were framed :

(1) Whether the impugned demand notice dated February 14, 1968, of the defendant is illegal and unenforceable against the plaintiff ?

(2) Relief.

4. The plaintiff-appellant appeared in the witness box and made his statement proving the notice of demand, exhibit P-1, on the record and deposed that he had deposited the house tax due from him for the periods 1966-67 and 1967-68 and he was not liable to pay the arrears of house tax mentioned in the demand notice. He admitted in the cross-examination that he was in provisional possession of the property in question much earlier to the issuance of the sale certificate in his favor by the Government. In rebuttal, a clerk from the house tax department appeared as DW-1 and he proved on record exhibits D-1 and D-2, copies of the extracts from the demand and collection register which show the period from which the house tax arrears have been calculated. DW-2, a clerk from the office of the Regional Settlement Commissioner, appeared in the witness box and deposed that provisional possession had been given to the plaintiff-appellant with effect from November 25, 1957. Vide judgment dated February 26, 1970, Shri Mohinder Singh, Sub-judge, gave a finding that the demand raised by the Municipal Corporation of Delhi is covered by article 113 of the Limitation Act, 1963. As the demand was barred by limitation, the Municipal Corporation of Delhi cannot recover house tax for a period prior to February 21, 1965. SO, he granted injunction restraining the Municipal Corporation of Delhi from recovering the arrears of house tax for the period prior to February 21, 1965. The matter was taken up in appeal by the Corporation and Shri H. K. S. Malik, Senior Sub-judge, vide the impugned judgment, held that no period of limitation is fixed for recovery of arrears of house tax by the Municipal Corporation of Delhi and much arrears of house tax could be recovered by a distress warrant and he placed reliance on Municipal Corporation, Delhi v. Balkishan Das [1972] RLR (N) 95 (wrongly mentioned as Note 92 in the judgment). He also placed reliance on an unreported judgment in R. S. A. No. 102 of 1968, Mittar Sain v. Municipal Corporation of Delhi. As far as the facts are concerned, they are not now in dispute before me. Counsel for the appellant frankly stated at the Bar that the sale deed which had been issued in favor of the appellant-plaintiff clearly mentioned that the property in question had been transferred to the plaintiff-appellant with effect from November 25, 1957, and a photo copy of the sale deed has been produced by him during the course of the arguments which has been placed on the record. So, the legal position is clear that the plaintiff-appellant became the owner of this property with effect from November 25, 1957. Exhibit D-2 clearly shows that the arrears of house tax claimed in the demand notice are of the period after the plaintiff-appellant had become the owner of this property. So, the contention raised that certain arrears of house tax pertained to the period when the Central Government was owner of the property is now not available to the appellant.

5. The only point which needs decision is as to what period of limitation applies to the claim of the Municipal Corporation of Delhi in respect of the arrears of house tax. Section 123 of the Delhi Municipal Corporation Act, 1957, makes it clear that the property taxes are the first charge on the premises on which they are levied. Article 62 of the Limitation Act lays down the period of 12 years to enforce payment of money secured by a mortgage or otherwise charged upon immovable property. Although in the case of Balkishan Das [1972] RLR (N) 95, Prithvi Raj J. had laid down the law that in respect of the house tax to be realised by distress warrant, there is no period of limitation applicable, yet even if one is to differ with this ratio, then these house tax arrears could be recovered within a period of 12 years in view of article 62 of the Limitation Act.

6. It has been argued by learned counsel for the appellant that the residuary article 113 which prescribes a period of three years should be applicable to recover arrears of house tax. But he has not been able to show as to why article 62 is not applicable when the statute clearly makes the house tax levied on a particular property as the first charge on that property. The matter is not res integra because similar provisions appearing in the Bombay District Municipal Act, 1901, have been construed in Shidrao Narayanrao Gumaste Patil v. Municipality of Athni, AIR 1943 Bom 21, and it was held that arrears of house tax being the first charge on the immovable property are governed by article 132 of the old Limitation Act, the corresponding article in the new Limitation Act being admittedly article 62. Earlier in Mt. Badrunnissa v. Municipal Board, Agra , similar provisions existing in the U. P. Municipality Act, 1916, came up for consideration and again it was held that such a demand for arrears of house tax which is a charge on the immovable property is covered by article 132 of the old Limitation Act. Counsel for the appellant had made a reference to Kalu Ram v. New Delhi Municipal Committee [1966] 2 DLT 526, which has dealt with the question with regard to recovery of damages for use and occupation recoverable under section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act and where it was held that only arrears which are not barred by limitation could be recovered. There is no dispute about this proposition of law. Our High Court has followed this in New Delhi Municipal Committee v. Jhangi Ram [1973] RLR (N) 34. The Supreme Court in New Delhi Municipal Committee v. Kalu Ram, , has also laid down the same proposition of law that the demand must not be barred by limitation before it could be given effect to. However, the question as to what particular article of the Limitation Act applies to the demand in question was not the subject-matter of decision in these cases.

7. Reference was made to Municipal Corporation of Delhi v. Palace Cinema, 2nd [1972] 1 Delhi 163 [FB]. This case pertained to recovery of advertisement tax and it was held that article 120 of the old Limitation Act which is a residuary article would cover such a demand. Obviously, the advertisement tax is not a charge on the property. Hence, in the absence of any specific article of limitation applicable to such demand, it was rightly held by a Full Bench of this court that such a demand would be covered by the residuary article.

8. So, in view Of the above discussion, I hold that article 62 Of the new Limitation Act is applicable to the demand in question and thus the same was not barred by limitation when it was made. Hence, the appellant could not possibly succeed in this appeal I need not express any view with regard to the correctness or otherwise Of the ratio laid down in the Case of Balkishan Das [1972] RLR (N) 95. I find no merit in this appeal which I hereby dismiss with costs.