Devi Singh vs Municipal Committee and Others

P.D. Desai, C.J.—The following facts are not in dispute:

The Petitioner is the lessee of a shop in the Municipal Petition against the order dated 8-9-1987 of Sh. S.S Parmar IAS, Divisional Commissioner, Kangra Division Meat Market, Chamba, which is owned by the first Respondent (Municipal Committee, Chamba). The rent with respect to the said shop being in arrears, proceedings u/s 7 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (hereinafter referred to as "the Act") were instituted against the Petitioner, vide Annexure P-l, on June 5, 1985 before the Competent Authority performing the functions of the Collector under the Act, for the recovery of a sum of Rs. 2670-35. During the pendency of the said proceedings, the Petitioner deposited a sum of Rs. 324/- before the Collector on June 2, 1986. The Collector passed an order on July 14, 1986, Annexure P-3, holding that the Petitioner was in arrears of rent but he had paid the rent in arrears "for the last three years" and that the claim for the balance amount was barred in view of Section 2(i) read with Section 3 and Article 52 of the Indian Limitation Act. 1963 (hereafter referred to as the "Limitation Act"). In view of the aforesaid holding, the claim for such balance amount was held inadmissible and the proceedings were ordered to be filed. An appeal carried against the said decision by the first Respondent to the Appellate Authority was, however, accepted and allowed vide Annexure P-5 on September 8, 1987, on the ground that Article 112 of the Limitation Act was applicable on the facts and in the circumstances of the case and that the prescribed period of limitation being 30 years, the claim for the recovery of the balance amount of arrear of rent could not have been rejected on the ground of limitation. The result was that the Petitioner became liable to pay the balance amount claimed as and by way of arrears of rent. Hence the present writ petition.

The question arising for determination in the present case is no longer res integra. In New Delhi Municipal Committee Vs. Kalu Ram and Another, the question for consideration was whether the licence fees in arrears for the period from May, 1950 to April, 1957 in respect of a stall allotted to the Respondent in that case by the Appellant-Municipal Committee for which a demand was made only in December, 1960 could be ordered to be paid and recovered in proceedings instituted u/s 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958. The following observations made in para 2 of the judgment are relevant and, therefore, are extracted verbatim:

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? u/s 7 of the [sic] 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 ''pay able'' 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....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 u/s 7 was made would have been barred by limitation. The amount in question was therefore, irrecoverable.

Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 is in pari-materia with Section 7 of the Act which is under consideration (See Foot note). The decision in Kalu Ram''s case, therefore, squarely covers the issue which falls for consideration in the present case. In light of the said decision, it must be held that the amount claimed as and by way of arrears of rent for a period exceeding three years preceding the date of the order of the Collector was irrecoverable and that, therefore, the Collector was right in rejecting such claim and the Appellate Authority was wrong in reversing the decision of the Collector.

The learned Counsel for the first Respondent urged, however, that whereas the decision in Kalu Ram''s case proceeded on a concession that a suit to recover the arrears of licence fees instituted on the day the order u/s 7 was made would have been barred by limitation, no such concession is being made in the present case and that the decision of the Appellate Authority to the effect that Article 112 of the Limitation Act applied on the facts and in the circumstances of the case and that, therefore, the claim for the recovery of the balance amount of arrears could not have been rejected on the ground of limitation was in accordance with law and not in conflict with the law declared in Kalu Ram''s case. In support he relied upon the decision in Jetha Nand v. The State of Haryana and Ors. 1981 P.L.J. 355 and L.S. Nair Vs. Hindustan Steel Ltd., Bhilai and Others, The submission that Kalu Ram,s case was decided on the basis of a concession to the aforesaid effect is correct. However, it is settled law that a Municipal Committee cannot take the advantage of the longer period of limitation provided in Article 112 of the Limitation Act, 1963 (comparative old Article 149) and that it cannot call in aid the provisions of the said Article: See Mehar Singh v. Municipal Committee, Amritsar AIR 1948 Lah 153 and the Municipal Commissioners for the City of Madras v. Sarangapani Mudaliar ILR 19 Ma 154. The decision in Jetha Nand''s case is distinguishable on the ground that the question of the applicability of the provisions of Article 112 was there considered in the context of Section 4 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972, which provides for the issue of a notice to show cause why an order of eviction should not be made, and that the language thereof is not comparable with the provisions of Section 7 which fell for construction in Kalu Ram''s ease and, more particularly, the word "payable" finding place therein which was construed to mean "legally recoverable". Besides, the reasoning in Jetha Nand''s case is expressed in rather general or broad terms and to that extent it is not in accord with the grounds which weighed with the Apex Court in Kalu Ram''s case in the context of Section 7. The decision in L.S. Nair''s case is also distinguishable. In that case Section 7(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 which fell for construction authorised the Estate Officer to assess the damages on account of the use and occupation of the premises and to pass an order requiring the person to pay the damages. It will be seen that the language used in Section 7(2) of the said Act is not in pari material with Section 7 of the Act under consideration. In fact, the decision rendered by the High Court in Kalu Ram''s case, which was ultimately subjected to appeal before the Supreme Court, was cited in that case and distinguished on that very ground. These two rulings, therefore, are of no assistance to the first Respondent.

For the foregoing reasons, the decision of the Appellate Authority is quashed. Rule is made absolute accordingly with no order as to costs.

FOOTNOTE

Section 7 : Public Premises Section 7 : Himachal Pradesh (Eviction of Unauthorised Public Premises and Land Occupants) Act, 1958. (Eviction and Rent Recovery) Act, 1971. 7. Power to recover rent or da 7. Power to require payment mages in respect of public pre of rent or damages in respect mises as arrears of land reve of public premises:-- nue. (1) Where any person is in (1) Where any person is in arrears of rent payable in respect arrears of rent payable in of any public premises, the respect of any public estate officer may, by order, premises, the Collector require that person to pay the may, by order, require ame within such time and in that person to pay the same such instalments as may be within such time as may be specified in the order. specified in the order. (2) Where any person is, or has (2) Where any; person is, or at any time been in unauthorised has at any time been, in occupation of any public pre unauthorised occupation of mises, the estate officer may, any public premises, the Col- having regard to such princi- lector may, having regard to ples of assesment of damages such principles of assessment as may be prescribed, assess of damages as may be the damages on account of the prescribed, assess the damages use and occupation of such on account of the use and premises and may by order, occupation of such require that person to pay the premises and may, by order, damages within such time and require that person to pay in such instalments as may be the damages within such time specified in the order: as may be specified in the order. Provided that no such order (3) No order under sub- shall be made untill after the Section (1) or Sub-section (2) issue of a rotice in writing to shall be made against any the person calling upon him to person until after the issue of show cause within such time as a notice in writing to the may be specified in the notice person calling upon him to why such order should not be show cause within such time as made, and until his objections, may be specified in the notice if any, and any evidence he may why such order should not be produce in support of the same, made, and until his objections, have been considered by the if any, and any evidence estate officer. he may produce in support of the same have been consi- dered by the Collector. (3) If any person refuses or fails to pay the arrears of rent or any instalments thereof payable under Sub-section (for the damages or any instalment hereof payable under Sub-section (2) within the time specified in the order relat- ing thereto the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrear of land revenue.