Gajjan Singh vs State of Punjab

Nanak Chand Khichi, J.—In this writ petition under Article 226/227 of the Constitution of India, the prayer of the petitioner is for quashing the orders Annexures P.3 and P.5 and for declaring the proceedings u/s 7 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 as being barred by time.

The facts giving rise to the filing of the present writ petition are that the respondent-State filed an application u/s 1 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (hereinafter referred to as the ''Act''), against the petitioner for the recovery of Rs. 9190.00 on the allegation of unauthorised use and occupation of the agricultural land comprised in Khasra No. 256(6-5), 260(6-5), 269(6-5) and 270(3-3), situated in the revenue estate of village Balaspur, Tehsil and District Patiala. A notice (Ann.P.1) u/s 7 of the Act was issued to the petitioner in the year 1984 requiring him to pay the damages from the year 1969 to 1975. In reply thereof, the petitioner pleaded that the claim of the respondent-State was barred by time and further in para 3 of the written reply, the claim was categorically denied. Para 3 of the written reply submitted by the petitioner reads as under :-

"3. That the respondent did not cultivate the land mentioned in the notice during the year 1969 to 1975, nor he is in possession of any public premises. He is not liable to pay the amount claimed."

After hearing both the parties, the application of the State was accepted and the petitioner was ordered to pay a sum of Rs. 9190/- vide order dated 25.3,1985 by the Collector, Patiala Sub Division, Patiala, Aggrieved by this order the petitioner went in appeal before the learned Commissioner, Patiala, who vide order and 2.9.1985, accepted the appeal and remanded the case for a fresh decision by making assessment of damages in accordance with Rule 7 of the Act ibid. After remand fresh evidence was taken on record and the learned Collector vide order dated 31.7.1987 (Ann. P.3), directed the petitioner to pay a sum of Rs. 16913-40 paise to the State as damages on account of use and occupation of the land. Aggrieved by this order, the petitioner approached the Commissioner, Patiala Division, Patiala by way of an appeal who vide order dated 20.1.1988. (Ann. P.5) dismissed the same.

In the written statement the respondent-State has pleaded that the petitioner remained in occupation of the Government land in question from the year 1969 to 1975 and as such, he is liable to pay the damages. According to the respondents, the impugned orders are valid having been passed after considering every aspect of the case.

After hearing the learned counsel for the parties at length, I am of the view that there is no scope for interference by this Court in the impugned orders in writ jurisiction, for the reasons to be recorded hereinafter.

In the first instance Shri Arun Jain, learned counsel for the petitioner has submitted that the petitioner is not proved to be in possession of the land in qnestion and as such, he was not liable to pay any damages. I am afraid this question being a question of fact can''t be agitated in writ proceedings. After examining the record, the Courts below recorded a finding that the petitioner was in unauthorised possession for the period 1969 to 1975 and as such, was liable to pay the damages for use and occupation of the same.

The learned counsel has submitted that in the instant case though the petitioner is disputing the very liability to pay the damages, if any, are being claimed for the period 1969 to 1975 and the proceedings u/s 7 of the Act were initiated in the year 1984 i.e. much beyond three years which is the limitation provided for recovering any amount under the general law of limitation i.e. u/s 113 of the Indian Limitation Act. According to him, the claim of the respondent-State was barred by time and the amount in question was not recoverable under the, provisions of Section 7 of the Act. In support of his contention, he placed reliance upon the decision of the Highest Court rendered in New Delhi Municipal Committee v. Kalu Ram 1976 P.LJ 351 and Faqir Chand v. Municipal Committee, Sultanpur Lodhi 1984 PLJ 109. The relevant observations of the Hon''ble Supreme Court made in para 2 of the decision rendered in Kalu Ram''s case (supra) read as under :-"

"xx xx xx xx xx xx 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 instalments as he may specify in the order. Before however the order is made, a notice must, be issued 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 law. 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 due1'' 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 Company Ltd. 60 IA 13, that this meant money 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 the the word "payable" in Section 7. in the context 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."

In Faqir Chand''s case (supra) the Municipal Committee sought to recover the arrears of tax under the provisions of Section 81 of the Punjab Municipal Act. The recovery of the amount was held to be barred by time. It was held that Section 81 of the Municipal Act provides a special procedure for recovery of claimable money and it cannot be construed that even though the Municipal Committee had lost the remedy to recover the amount in a Court of law, it still retained the right to recover it by invoking the coercive machinery. In nut-shell it was held that the procedure prescribed u/s 81 of the Punjab Municipal Act cannot be resorted to for the recovery of time-barred dues.

On the other hand, the learned State Counsel has relied upon a decision of this Court in Northern India Caterers Pvt. Ltd. v. District Judge 1987(2) PLR 579. The Division Bench after considering the decision of Kalu Ram''s case (1976 P. LJ 351) (Supra), held as under:-

"8. A reading of the above would show that the Estate Officer u/s 7 can order payment of the damages if the claim made is otherwise not time-barred. It is not disputed that if a suit for recovery of damages were to be filed by the Chandigarh Administration, the limitation was 30 years under Article 112 of the Indian Limitation Act, 1963. The sole argument of the learned Counsel for the petitioners is that the present proceedings are not a suit but an application and limitation of three years provided Under Article 87 of the Limitation Act, would be applicable, while Article 87 would apply to a suit by a plaintiff other than the State/Central Government, but for a similar suit by the State/Central Government, the limitation would be 30 years in view of Article 112. Moreover the underlined observations of the Supreme Court quoted above, clearly go to show that the limitation under the law of Limitation has to be taken notice of and if a suit would be barred on the date an application u/s 7 is filed, then the arrears will become irrevocable. As a corollary, if a suit would be within time, then the claim cannot be denied merely because it sought to be recovered u/s 7."

In view of the law laid down in M/s Northern India Caterers Pvt. Ltd. case (supra), the contention of the learned Counsel for the petitioner that the period prescribed for recovery of the amount on account of damages is only 3 years and as such, the claim of the respondent-State was clearly time-barred and the proceedings initiated u/s 7 of the Act were bad in law, is not tenable. Article 113 of the Indian Limitation" Act has no application in the facts of the present case. The petitioner was held to be in unauthorised possession of the land and the State filed an application for recovery of damages. The Collector u/s 7 of the Act was well within its powers to order payment of damages, if the claim made by the State was otherwise not time-barred. Herein, claim for recovery of damages for unauthorised occupation was made by way of an application by the State of Punjab and as such, a suit could also be instituted by the State within a period of 30 years under Article 112 of the Indian Limitation Act, 1963. Thus Article 112 and not 113 of the Limitation Act would be applicable to a suit/application for recovery of damages from an unauthorised occupant u/s 7 of the Act and damages for a period of 30 years prior to initiation of proceedings can be claimed and recovered.

In view of what has been stated above, the writ petition is dismissed being without any merit with no order as to costs.