Union of India (UOI) vs Devi Dayal

Jaswant Singh, J.—This civil first appeal is directed against the decision dated October 31, 1970, of the learned Additional District Judge.

Jammu. decreeing the plaintiff-respondent's suit No. 5 of 1966 for Rs. 12.923/- claimed as damages for demolition of his building and removal of

the doors, window frames, shutters, battons and beams therefrom.

It appears that the plaintiff-respondent brought the aforesaid suit on January 7- 1966. with the allegations that he was the owner of a garden,

well and a building consisting of six rooms, out houses and a cattle shed standing on Khasra No. 599 measuring 19 Marias in Village Naerota.

Tehsil Jammu. that the appellant's Army took possession of the aforesaid property in 1951 without his consent or knowledge, that the illegal

possession of the Army was regularised under Cabinet Order No. 222-C of 1955 dated March 11. 19.55, passed u/s 32-A of the Jammu and

Kashmir Public Security Act. 2003 (Samvath that being out of station on official duty at various places he did not know as to what ex parte

decision was made regarding compensation, that he was never allowed by the Army to enter the Premises on security grounds, that he received

letter No. 609 dated December 20, 1962 from the O. C. 84, Infantry Workshop Coy. E. M. E. asking him to repair the building ox to demolish

the same, that on receipt of this letter in January 1963, he came to know that the Army had used the aforesaid building carelessly and bad

practically demolished the same and removed the doors, windows frames, shutters, battons, beams etc. leaving only the walls on the spot, that he

made an application to the Deputy Commissioner, Jammu. complaining about the matter, that on inquiry into the matter, the Deputy Commissioner

found that the Army had taken illegal possession of the plaintiff's garden, well, and building in 1951 and had continued to use the same since then,

that specific mention of the well, garden and building was not made in the aforesaid requisition order, and that the Army had caused a loss to the

plaintiff to the extent of Rs. 12,923/- by demolishing his building, that the Deputy Commissioner called upon the Army authorities to pay the

aforesaid compensation but as the latter had unduly delayed the matter and not made payment of the compensation assessed by the Deputy

Commissioner; hence the suit.

The appellant filed a written statement raising various contentions.

On the pleadings of the parties the following issues were framed:

1/- Is Shrimati Malu a necessary party to the suit? O. P. D.

2/- Is the suit barred by time? O. P. D.

3/- Is the plaint vague : if so with what effect on the suit? O. P. D.

4/- Is the defendant not liable for the tortious acts of its employees? O. P. D.

5/- Are the defendants in possession of the house, well and garden of the plaintiff? O. P. P.

6/- If issue No. 5 is Proved whether the defendant had used the house carelessly and practically demolished it and removed its material? O. P. P.

7/-If issues Nos. 5 and 6 are proved what is the amount of damages that the plaintiff is entitled to? O. P. P.

8/-Relief to which the plaintiff is entitled to in the end? O. P. P.

All the above issues have been found in favour of the plaintiff by the trial court.

The only point canvassed before us by Mr. V. S. Malhotra. learned counsel for the appellant, is that the suit was barred by time as it was

brought long after the expiry of two years provided in Article 36 of the Jammu and Kashmir Limitation Act which properly applied to the case and

that the trial court has grossly erred in holding it to be within time.

Mr. D. D. Thakur, learned counsel for the respondent has, on the other hand, urged that the suit was governed either by Article 86 or 119 of

the State Limitation Act and there is no room for interference with the judgment and decree of the trial Court.

After giving our careful consideration to the submissions made by the learned counsel for the parties, we find ourselves unable to accede to the

contention of the learned counsel for the respondent that the suit is governed either by Article 86 or 119 of the Limitation Act. The suit, in our

opinion, is governed neither by Article 86 nor by Article 119 but by Article 36 of the Act. It would be useful at this stage to refer to all the

aforesaid three Articles which run thus:

Description of Suit Period Time from which period begins to run

of

limitation

Art. 38 Two When the malfeasance, misfeasance or non-feasance takes

years place.

For compensation for any malfeasance

misfeasance, or non-feasance independent of

contract and not herein specially provided for.

Art. 86 For compensation for the breach of Three When the contract is broken, or (where there are successive

any contract express or implied, not in writing years breaches) when the breach in respect of which the suit is

registered and not herein specially provided instituted occurs, or where the breach is continuing) when it

for. ceases.

Art. 119 Six When the right to sue accrues.

years

Suit for which no period of limitation is

provided elsewhere in this Schedule.

There can be now no manner, of doubt that Article 36 deals with actions ""ex delicto"" i. e. with suits for compensation for three kinds of tort

mentioned therein namely non-feasance or the omission of some act which a man by law is bound to do: mis-feasance the improper performance

of some lawful act, or mis-feasance the commission of some act which is in itself unlawful, and Article 86 corresponding to Article 116 of the

Indian Limitation Act (1908) deals with actions ""ex contracto"" not specially provided otherwise (See Avaran Kutti by next friend, Kalathingal

Ithalukki Vs. Cheriyakkan and Others, , Corporation of Madras by Commissioner Vs. B.D. Kothandapani Chetty, and AIR 1922 Lah 198 (FB).

To fall within the purview of Art. 36 the above three tortious acts have to be independent of a contract. On the other hand, in order to attract the

provisions of Article 86. which is in the nature of a residuary Article the act complained of has to be in breach of a contract, express or implied, not

in writing registered and not specifically provided for in the Limitation Act. The important question that, therefore, arises is as to what is the

meaning of the words ""independent of a contract"" occurring in Article 36. The meaning of the words has been succinctly brought out by Greer L. J.

in Jarvis v. Moy. Devies, Smith, Vendor-veil and Co.. (1936) 1 K. B. 399 (A). There the plaintiff sued the defendant, a firm of stock brokers,

claiming damages for breach of his instructions as to the purchase of certain shares whereby he sustained a loss. For the purpose of ascertaining

the scale of fees it was necessary to decide whether the action was founded on contract or on tort. The court of appeal held that the action was

founded on contract. At page 405. Greer L. J. said:

The distinction in the modern view for this purpose between contract and tort may be put thus. Where the breach of duty alleged arises out of a

liability independently of the personal obligation undertaken by contract it is tort and it may be tort even though there may happen to be a contract

between the parties, if the duty in fact arises independently of that contract. Breach of contract occurs where that which is complained of is a

breach of duty arising out of the obligations undertaken by the contract.

The Question that arises at this stage is whether the acts of pulling down the house and removal of the doors, window frames, shutters, battons,

beams etc. complained of by the plaintiff were committed in violation of the duties or obligations arising out of a contract. The occupation by the

Army authorities of the building in question was obviously not pursuant to any contract. It can be traced only to the aforesaid requisition order

made under Sees. 32-A and 32-B of the Security Act, 2003 (Sam-vat) in exercise of the superior power of requisition possessed by the

Government. The possession of the Government or the Military authorities cannot also be said to be permissible or as a tenant of the owner.

Though it is true that the relationship of landlord and tenant can come into existence as a result of the operation of a statute irrespective of the

intention of the parties, but that relationship, it is also well recognized, does not come into being if the statute does not make a provision in that

behalf. Now a careful perusal of the provisions of the Public Security Act would show that there is also no provision in the Act to that effect that

the Position of the Government or the military authorities occupying an immovable property pursuant to an order of requisition would be analogous

to that existing under a contract, or that the requisitioning authority or the Army would be a tenant of the requisitioned premises. There is a catena

of decisions which define the position of the Government or the Military authorities in case a building is requisitioned for the purposes mentioned in

Rule 75-A of the Defence of India Rules which is pari passu with Section 32-A of the Jammu and Kashmir Public Security Act. 2003 (See AIR

1950 Ass 133, The Union of India (UOI) Vs. Ram Pershad and Others, and AIR 1957 Pat 637).

In Lalit Kumar v. Bhagaban Ch. Sarma. AIR 1950 Ass 133 it was held:-

No question of tenancy, contractual or statutory arises between the Government and the owner of the property upon requisition under the Defence

of India Rules. What happens is that upon requisition when the Government take possession of the property. the claimants are kept out of it. and

as the Government take possession in pursuance of their statutory power they must pay compensation for such possession, and one of the ways in

which such compensation might be determined is to determine what rent the landlord would receive if he were to let or had let out the property to a

tenant.

In the The Union of India (UOI) Vs. Ram Pershad and Others, . it was observed:-

In the Defence of India Act. 1939 or the rules made thereunder there is no provision making the requisitioning authority a tenant of the owner of

the requisitioned premises. In such cases the requisition by the State is by virtue of the superior authority which the State possess to compulsorily

acquire or requisition the premises and the relation-ship of landlord and tenant between the State and the landlord is not established unless the

statute makes a provision to that effect.

Again in Ramji Valji v. J. N. Singh. AIR 1957 Pat 637. a Division Bench of the Patna High Court laid, down:-

Under Rule 75A. Defence of India Rules, title to the property vests in the Government as soon as the order of requisition is made and it is not

therefore, right to speak of the Government as the tenant of the Premises. It follows that there is no relationship of landlord and tenant between the

owner of the requisitioned premises and the Government authorities and. therefore, the proviso to Sec. 11 (1) of Bihar Act III of 1947 has no

application in such a case.

This position of law seems to have been approved by the Supreme Court in Prokash Chandra Mukherjee and Others Vs. Saradindu Kumar

Mukherjee of Choudhury Para Roa, Barasat and Others, , where their Lordships laid down that possession by the Government or the Military

authorities of immovable property under Rule 75-A of the Defence of India Rules, 1939. cannot be said to be in the character of an agent or by

virtue of any implied Permission from the true owner or occupier.

Thus there being no express or implied contract between the parties the acts complained of in the instant case cannot be said to be in breach of

any contractual obligation so as to attract the provisions of Article 86 of the Limitation Act as urged by the learned counsel for the respondent. The

acts complained of as admitted by the respondent himself in para. 8 of his plaint were purely tortious acts and clearly fell within the purview of

Article 36 of the Act. As the present suit falls within the ambit of Article 36 there can be no question of the applicability of Article 86 or Article

119 of the Limitation Act which are residuary in character. We are unable to appreciate the process of reasoning by which the learned Additional

District Judge came to the conclusion that the suit was governed by Article 119 of the Limitation Act.

Accordingly we allow the appeal, set aside the judgment and decree of the trial court and dismiss the suit as being time barred. In the

circumstances of the case we leave the parties to bear their own costs.

Before parting with the file we wish to make it clear that the decision rendered by us will not preclude the plaintiff-respondent from

approaching the authorities and seeking his remedy u/s 32-A (8) of the Public Security Act, as it stood at the time of the requisition of the property.

The fact that the Cabinet, Order No. 222-C of 1955 dated March 11, 1955 speaks of the requisition of lands described in the Schedule

appended thereto for the use of the Armed Forces does not mean that the buildings if any, standing on those lands were excluded from the purview

of the order. The word ""lands"" used in the requisition order is, in our opinion, comprehensive enough to include the buildings or other immovable

property standing thereon.