- 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.
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,
JudgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) 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 causeShow Cause A process directed to a person to appear in court and present reasons why a certain order, judgment, or decree should not be made final. 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 IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more. 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 CorporationCorporation A legally established entity that can enter into contracts, own assets and incur debt, as well as sue and be sued—all separately from its owner(s). The term covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies. 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 claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. 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 claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. 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 timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”)? 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 evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 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 costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or 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 performanceSpecific performance The remedy of specific performance is special and extraordinary and is at the court’s discretion, which the court would only exercise “if, under all the circumstances, it is just an equitable to do so”. Factors affecting the court’s discretion include considerations such as: (a) whether damages would be an adequate remedy; and (b) whether the person against whom the relief of specific performance is being sought would suffer substantial hardship. of the contractContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act.. 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 agentAgent An agent is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the principal. Indian Contract Act 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 LawLaw Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. 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 lawCommon law The legal system that originated in England and is now in use in the United States. It is based on court decisions rather than statutes passed by the legislature. 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.)
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