Umesh Joshi vs South Eastern Railway and Another

Abhay Manohar Sapre, J.—Heard. This is a civil revision filed by the appellant u/s 115 of the C.P.C. against the order dated 30-6-2005 passed by the District Judge, Rajnandgaon in Misc. Civil Appeal No. 8/97, which in turn arise out of order dated 16-9-1997 passed by the Estate Officer, under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter for short called ''the Act'') in Case No. E/Comml/1/90.

By impugned order, the first appellate Court allowed the appeal filed by the revision petitioner in part and in consequence modified the order passed by the Estate Officer u/s 7 of the Act impugned in the appeal partly in favour of the revision petitioner to the extent indicated infra.

So the question which arises for consideration in this revision is whether the lower appellate Court was justified in allowing the appeal filed by the revision petitioner in part thereby justified in dismissing the remaining appeal by upholding the order of the Estate Officer. In other words, the question is whether first appellate Court should have allowed the appeal in entirety by setting aside of the order passed by the Estate Officer ?

Facts of the case lie in narrow compass and the same need mention infra to appreciate the issue involved in the revrsion.

One Shiv Lal Kalidas was given temporary licence by the Railways in the year 1950 to occupy and use their one plot bearing No. 20 measuring around 17,400 sq. feet at Rajnandgaon. Shiv Lal occupied the land given to him and enjoyed its possession as licensee on payment of licence fees as per terms and conditions of the licence. He died in the year 1972 due to which the licence granted to him came to an end.

His son-Umesh, the petitioner herein continued to enjoy the said land on the same terms and conditions. He did not inform the Railway Authorities about the factum of death of his father and went on depositing the licence fees in the name of his father which his father had been paying. He however handed over the possession of the plot to the Railway Authorities on 30-11-86.

On 11-6-1990, the Estate Officer of the Railways issued a show cause notice to the revision petitioner-Umesh u/s 7 read with Section 13 of the Act demanding from him licence fees cum money in the form of damages for his unauthorised use. This demand was for the period 1-10-1980 to 30-11-86 for Rs. 16,692/- towards licence fees and Rs. 86,762/- by way of damages and further demand for the period December 1986 to June 1990 at the rate of Rs. 868/-. In all thus, the Railways demanded Rs. Rs. 1,24,086/- from the petitioner.

It is this demand, which the revision petitioner contested before the Estate Officer. One of the ground raised by the revision petitioner was that the demand was barred by limitation and hence bad in law.

The Estate Officer by his order dated 16-9-1997 overruled the objection and directed recovery of the entire amount from the revision petitioner totalling Rs. 1,24,086/-. It was held that the demand was just, legal and within time. He also held on facts that since the revision petitioner had also admitted in one of his letter and affidavit that he is ready to pay the dues as demanded way back in the year 1982 and hence also he was liable to pay the entire amount till the date he was in occupation of the land in question.

The revision petitioner felt aggrieved of this order, filed appeal u/s 9 of the Act, before the District Judge. By impugned order, the learned District Judge partly allowed the appeal. He held that since the revision petitioner had vacated the land in question on 30-11-86 and hence the demand for the period after 30-11-86 was bad in law and deserves to be set aside. He also held that the demand raised for the period 1-10-80 to 30-11-86 was legal and proper. It was accordingly upheld.

It is against this order, the revision petitioner has felt aggrieved and filed this revision.

Learned Counsel for the petitioner placing reliance on the decision of the Supreme Court reported in New Delhi Municipal Committee Vs. Kalu Ram and Another, contended that the issue involved in this revision in relation to limitation remains no more res integra and stands answered in petitioner''s favour. Learned counsel contended that their Lordship in Kalu Ram''s case has laid down in no uncertain terms that the demand raised u/s 7 of the Act is governed by the Limitation Act and hence so long as demand is not found legally payable, an amount demanded therein is not recoverable u/s 7 ibid. In other words, the submission was that if the suit to recover the amount demanded u/s 7 cannot be filed because it was barred by limitation than as a necessary corollary, such amount can also not be recoverable by taking recourse to the provisions of Section 7 ibid. Learned counsel therefore, urged that since in this case, the notice demanding the rent/licence fees/damages for the period 1980 to 1986 was sent in June 1990 and hence it was barred by limitation, having been sent beyond the period of three years from the date it became payable and hence neither the suit could be filed for recovery of such amount and nor notice u/s 7 of the Act could be issued for recovery of such amount both being barred by limitation.

In reply learned counsel for the respondents supported the impugned demand.

Having heard the learned counsel for the parties and on perusal of the record of the case, I find force in the submission urged by the learned counsel for the petitioner and hence set aside the impugned order as also the order 16-9-1997 passed by the Estate Officer.

This is what the Supreme Court held in Kalu Ram case.

The word "payable" in Section 7, in the context in which it occurs, means "legally recoverable." 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 debt otherwise time-barred.

When we read the aforesaid para from the Supreme Court judgment it is clear that the provisions of Limitation Act are made applicable to the proceedings initiated by the Estate Officer u/s 7 of the Act and hence if the suit for recovery of such amount for which the notice u/s 7 of the Act had been issued could not have been filed for want of limitation then as a necessary consequence, no notice u/s 7 ibid for recovery of such amount could be given by the Estate Officer. It was also equally barred.

Coming to the facts of the case, the demand for the period 1-10-80 to 30-11-86 was raised by serving notice on 11-6-90. The limitation to give notice was only three years from the date the amount became payable. It was therefore, obviously barred. In other words, if suit to recover this amount could not have been filed because limitation to file suit had expired on the date of giving of the notice i.e. on 11-6-90, then it necessarily followed that even notice u/s 7 of the Act for recovery of such amount could not have been given. It was also equally barred.

It is for this reason; I am of the considered view that two Courts below committed a legal error in entertaining the proceedings initiated by the Estate Officer at the instance of the Railways for recovery of the alleged outstanding amount from the petitioner treating the notice issued u/s 7 ibid to be within time.

It is really unfortunate that the law of the land holding the field was not taken note of by the appellate Court.

Before parting with the case, I am constrained to observe that since the law is in petitioner''s favour and hence this Court can not uphold the demand but otherwise the petitioner is morally liable to pay the dues being in its unauthorised occupant as per demand raised. In all fairness, therefore, the petitioner should have paid the entire dues to the respondent till the date of his vacation of the land of his own regardless of the time when demanded. Be that as it may, these are my only observations.

To conclude, the revision succeeds and is allowed. The impugned order so also the order dated 16-9-1997 passed by the Estate Officer are set aside. No cost.